A Brief Review of Cheryl Jacobus' Defamation Suit Against Donald Trump And Corey Lewandowski

Political strategist Cheryl Jacobus has just filed a lawsuit against Donald Trump, his calamusphobic bodyguard Corey Lewandowksi, and Donald J. Trump for President, Inc. This is relevant to my interests, so I read it. You can find it here.

I'm not going to talk about the procedural options open to Trump et al., as in my experience New York state civil procedure is an interminable dog's breakfast. But I will comment on the substance. Has Jacobus stated facts which, if believed, support a claim for libel?

Eh. Not very strongly.

The thrust of Jacobus' claim is that the citizens of Trumpelstan were annoyed with her commentary and so falsely asserted that she had begged for a job on the Trump campaign and become hostile when refused. Jacobus claims that it was Trump's team who sought her out, not the other way around, and that after two meetings she saw that they were a pack of lunatics and backed out.

More specifically, Jacobus complains of the following statements about her. By Lewandowski on on MSNBC's "Morning Joe":

She [Megyn Kelly] had Cheri Jacobus on yesterday, who, uh, you know, wanted to talk about Mr.Trump. This is the same person, I'll just tell ya, who came to the office on multiple occasions trying to get a job from the Trump Campaign, and when she wasn't hired clearly she went and was upset by that.

Then this, in a tweet by Trump himself:

Great job on @donlemon tonight @kayleighmcenany @cherijacobus begged us for a job. We said no and she went hostile. A real dummy @CNN

And another Trump tweet:

Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility.

Jacobus complains that these false statements unleashed the Trumpalo Uruk-hai upon her life, causing fear and unpleasantness.

If any of this is defamatory, it is only barely so. “Rhetorical hyperbole,” “vigorous epithet,” “lusty and imaginative expression of contempt,” and language used “in a loose, figurative sense” are all protected by the First Amendment. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14.) Only false statements of provable fact — or opinions implying false statements of provable fact — can be defamatory. How do you tell the difference? You look at the totality of the circumstances surrounding the statement, including the likely understanding of an audience familiar with the forum and the players. Hence, satire from a publisher known for satire isn't defamatory even if it's played straight, because an audience familiar with the publisher and players would spot it for what it is. Courts recognize that in some contexts, statements are particularly likely to be viewed by a familiar audience as mere rhetoric and not fact. Those contexts include politics, litigation, and the internet.

So. Jacobus admits that when approached by Trump's team she explored, and was interested in the possibility of, a job. That excludes the argument that it's defamatory to say you wanted to work for Trump, which certainly would have been mortally offensive to me. It also means that Lewandowski's statement that she came to the office multiple times trying to get a job and that she wasn't hired are literally true and not defamatory.

Trump's characterizations like "loser" and "zero credibility" and and "dumb" and "major loser" and "dummy" are not provable statements of fact, they are mere insults — rhetorical expressions of contempt. They can't be defamatory.

Trump's characterization of Jacobus as "hostile" is probably too indefinite, unprovable, and opinion-based to be defamatory. Whether she's hostile or not depends on a subjective political evaluation of the media appearances Trump was reacting to. That's very unlikely to be defamatory.

So we're left with Lewandowski's characterization that when Jacobus wasn't hired "clearly she went and was upset by that." Could that be defamatory by implying that Trump turned Jacobus down and was angry as a result and framing her commentary as a result? I guess, but it's a very weak argument. Lewandowski is opining, on a political show known for spin, about the reasons for Jacobus' specific statements on a particular episode of another political show. He's suggesting she was mad because she didn't get a job. It's a characterization by an overt self-interested partisan campaign mouthpiece rejecting an opposing political view. It's the equivalent of a dude saying "you shouldn't listen to what she says about me because I dumped her and she's mad." Nobody moderately reasonable takes that as a statement of provable fact. People familiar with the Morning Joe show would not interpret such statements by campaign managers as assertions of literal and provable fact.

The same goes for Trump's tweets. Jacobus says that it is false to say that she "begged" Team Trump for a job or that they turned her down. But these are statements made by a political candidate, who is primarily known for bluster and trolling, on a platform characterized by hyperbole, about the rough-and-tumble world of political consultants and campaign inside baseball. Once again, imagine a mouthy lout saying "that girl begged me to go out with her and then I dumped her." Rational listeners wouldn't expect that to be a factual recitation of events. Rather — as is the case with Trump — listeners familiar with the speaker would interpret it as a narcissist's unserious evaluation of any interaction with him.

In defamation law, there's a popular philosophical question: can someone be "defamation-proof"? That is, can someone's reputation be so awful that no falsehood can make it any worse? There's a flip-side of this as well: can someone be so notoriously full of shit that they are incapable of defamation, because no reasonable person familiar with them would interpret anything they say as provable fact? This is what I call the batshit crazy rule and the Ninth Circuit more decorously refers to as "general tenor of the entire work." I think Trump — or at least Trump on Twitter — presents a good test case of the batshit crazy rule. Trump's Twitter behavior is such a legendary dumpster fire that I think Jacobus will find it very difficult to argue that anyone familiar with it would take what he says as a statement of fact. Sad!

Frankly, the lawsuit seems primarily a vehicle to drop juicy allegations about Trump and Lewandowki in a court document that's absolutely privileged from defamation suit. Jacobus portrays Lewandowski as angry and unbalanced — though to be fair, not as angry and unbalanced as Lewandowski portrays himself day-to-day. Jacobus also asserts that the Trump campaign was being dishonest about its funding and was too cozy with PACs. As little regard as I have for all things Trump, the lawsuit read to me as strictly politics by other means.

2/10 would not lawsuit again.

Last 5 posts by Ken White

Comments

  1. PLW says

    Ok… the best I can find is Wikipedia, which says that "The "Calamus" poems are a cluster of poems in Leaves of Grass by Walt Whitman. These poems celebrate and promote "the manly love of comrades". In these, "calamus" is literally a reed, figurative a penis, and reference a greek myth featuring a pair of young men who die together.

    Interesting.

  2. arity says

    Trump's Twitter behavior is such a legendary dumpster fire that I think Jacobus will find it very difficult to argue that anyone familiar with it would take what he says as a statement of fact.

    Say hello to your next president.

  3. Arlene Taube says

    You have missed the point. Trump's twitter comments were sent to millions of his "followers". So, guess what happened??? It's his game!!!

  4. AH says

    LOL, just as I was thinking "can someone really be such a notorious liar that they cannot commit slander/libel because no reasonable person would believe them?" you get to it. I do love reading this blog.

  5. Timothy A Wiseman says

    The "batshit crazy rule" amuses me, but it also disturbs me that it might seriously be applied to a living person rather than a specific publication. The Onion is known for and indeed exists for satire. No one familiar with that reputation would take anything printed there seriously (though we have seen cases where people repost things from it without knowing of that reputation….) But a person, even a comedian, needs to be serious some of time in order to handle business. It does not seem that a person should ever become unable to defame. Though, if it could be applied to anyone, I suppose Trump would be a good candidate for it.

  6. Scott Jacobs says

    That excludes the argument that it's defamatory to say you wanted to work for Trump,

    Is it possible for something that wasn't defamatory at the time to become so? Like considering working there before it was common knowledge that it was a human landfill?

    Like how saying "So-and-so has the ethics and decency of an assistant football coach at Penn State" was probably OK before late 2011?

  7. Encinal says

    Can the judge apply this reasoning sua sponte? 'Cuz if Trump himself has to explicitly argue that the case should be dismissed on the basis that he is so batshit crazy that no reasonable person would take him seriously for the reasoning to be applied, that would itself be a victory.

  8. Heather Anderson says

    Encinal, I'm not so sure it would be a victory, actually. This kind of statement feels like one that would bounce off of Trump. Plus Akre vs WTVT/Fox didn't really do much other than create Facebook memes.

  9. RB says

    satire from a publisher known for satire isn't defamatory even if it's played straight, because an audience familiar with the publisher and players would spot it for what it is.

    So the big question is, could Ken defame someone with a posting on popehat?

  10. Seth says

    I would love to see Trump defending himself by admitting that he's a major liar and nothing he says can be trusted.

  11. Michael P says

    I disagree re "dummy". Maybe it's a garden variety insult for someone you haven't worked closely with, but when applied to someone you interviewed for a job, I read it as implying some undisclosed defamatory fact about their fitness or competency for that kind of job.

  12. WDS says

    @RB

    "So the big question is, could Ken defame someone with a posting on Popehat?"

    My layman's analysis says "Yes, but not if the post at any place mentions ponies".

  13. Bob says

    Ok, let's say the batshit crazy rule is applied and the lawsuit is dropped. What happens when the batshit crazy person is elected president, and the plaintiff tries to get a job, and now rather than the general public applying the batshit crazy test they start applying the commander-in-chief test?

  14. wumpus says

    Oddly enough, the typical complaint about social media and Trump involves Trump identifying somebody as on the "enemies list" followed by mass online attacks on the enemy.

    While I have no legal training, the two obvious laws/precedence would be "inciting a riot" (not remotely similar) and whatever they bust lizard squad with (arrests have been made, and I think a conviction) when they DDOS someone. I guess it all depends on a jury if you could show that "defaming a facebook wall" would somehow have the same effect as a DDOS.

  15. Murder Hobo says

    Inciting a riot seems tenuous (at least I hope the law clearly defines "riot" to include things like L.A. after Rodney King and not things going viral online.)

    It is generally illegal, to incite people to break other laws. Of course, I am generally wary about any other laws where the elements mainly consist of "saying stuff to people on the internet," but Ken did post an article not long ago discussing the limited contexts where it may be reasonable to limit unwanted speech under some sort of harassment law. This is, of course, assuming that all Trumpeldore's Army is doing sending unwanted tweets and e-mails.

    If he's actually inciting people to commit DDOS attacks or other things of that nature, I am much more comfortable calling their actions a crime and his actions incitement to commit a crime.

  16. melK says

    Can someone fall under the "batshit crazy rule" if they hold elected office and are talking about actual or potential actions of that office? (And for the office of President, how much could you reasonably exclude from "potential actions"?)

  17. Dan says

    This entire article, although somewhat interesting in its own right, is completely overshadowed by the coining of the term "calamusphobic" in the lede.

    It's a great word for something there should already be a word for.

    I would suggest "kalamophobic" though. This avoids mixing Greek and Latin roots, plus it rolls off the tongue better.

  18. Jackson says

    Ken, as an ultimate triumph for your writing, I sent this article to the co-head of my business (which is completely unrelated to speech), and his response was:

    "this is great / he should write our responses / he's a lawyer right we could hire him?"

    Congrats. Your blog is officially fake sourcing business for you.

  19. sadmar says

    Ken: I'm not sure if you've taken note of Mike Adams of 'NaturalNews" recent posts on Dr. David Gorski.. As a hypothetical (not actual legal advice) I'm wondering how you would view a libel action by Gorski (afaik, he has no intention of filing one) in light of the points made above.

    Adams' posts are mostly "rhetorical expressions of contempt." Among his tactics are attempts to implicate Dr. Gorski in the medical fraud perpetrated by convicted felon Dr. Farid Fata. He uses leading questions for this, e.g.:

    So who exactly were Fata’s accomplices? Is it possible pro-vaccine troll David Gorski was somehow involved in Fata’s scam or at least privy to it?

    However, Adams titled one post "“Pro-vaccine shill Dr. David Gorski linked to cancer fraudster…” and in another asserted that Gorski is “a colleague of Dr. Farid Fata” both of which are manifestly false. He also wrote:

    we have reasonable suspicion to believe that he places cancer patients in Detroit in dire risk of harm and possibly death… It is important to note that in his attempt to misdirect investigators, Dr. David Gorski will immediately engage in spreading lies and disinformation about Natural News and its editors and investigators… As to be expected from pathological minds, Dr. David Gorski will stop at nothing to attempt to mislead investigators in this matter.

    My first query to you is, assuming these statements constituted grounds for action, would Adams – an all-purpose crank spewing a cornucopia of outre conspiracy theories – qualify as "someone be so notoriously full of shit that they are incapable of defamation, because no reasonable person familiar with them would interpret anything they say as provable fact?"

    My second query concerns the 'reasonable person' standard in a society where a significant percentage of the public exhibits manifest unreasonableness (c.f. support of Donald Trump.) Adams posts this stuff on his 'NaturalNews' site, as a means to promote his sales of 'nutritional supplements' of dubious value for which he makes unsupportable (OK, bonkers) health claims. The site has a lot of traffic, many fans and customers, and Adams makes quite a lucrative living from its webstore. There's evidence to suggest that thousands of people, at least, interpret not only what he directly states about Gorski, but also what he implies, as "provable fact" (if not already 'proven').

    Now, as this real-life case is merely the prod to my general hypothetical, let's imagine that this significant number of people who will believe falsehoods about Dr. Gorski are not 'nut-cases' outside the sphere of 'alternative medicine'. That they have jobs, families, function well in everyday life, and conduct themselves in the majority of their actions in ways that would be generally considered 'reasonable' by 'common sense' standards. Furthermore, let's imagine that this group is large enough, and collectively in possession of enough esources, to cause damage to Gorski's reputation, or perhaps embroil him in enough 'controversy' that his work is harmed, or he loses some position at work because his employer fears the consequences of negative publicity. (Fwiw, I would guess his employers reaction would be the opposite, though that's just a guess.)

    How would/should any of this figure in placing Adams somewhere on a scale of application of "the batshit crazy rule"? (For the hypothetical, I shall assume this is not a binary 'yes or no' but that more batsh!t = less liability). In many ways, Adam's posts resemble your description of Cox's: flamboyant and bizarre accusations, recursively citing each other, all but barren of relevant facts or evidence. However, the site is unquestionably 'professional' given the revenue it generates. It presents itself as "the internet's No. 1 natural health news website, now reaching 7 million unique readers a month". Adams's "articles" are not in any way identified as 'Op-Ed', and they follow many of the prose conventions of news reporting, including use of attribution — although they regularly go way out of bounds of convention with bits of pure editorializing. In his bio on the site, Adams presents himself with the following statements [heavily excerpted from looong self-hagiography]:

    Mike Adams is an award-winning investigative journalist, and science lab director. [He] is a prolific writer and has been called "the best health and natural products writer on the scene today." [He] has appeared on many radio shows and TV shows, including: The Dr. Oz Show; Coast to Coast AM; Geraldo At Large; National Public Radio (local affiliates. In addition, Adams has been a keynote public speaker at numerous public events, including speaking at preparedness trade shows, medicinal herb conferences, GMO rallies and the Health Freedom Expo.

    While his 'articles' contain plenty of hyperbole and extreme language (not to mention clunky prose like "Adams has received accolades and testimonials from several key influencers in the natural health space"), they are not "run-on stream-of-consciousness that seem more like diary entries about feelings". One from December 2015 has 125,763 shares on Facebook.

    If that many people think you're a credible 'natural health journalist' how is a court to determine whether your writing is "batshit crazy"? Can this be determined by some 'objective' standard applied to the writing regardless of how it is, in fact, interpreted by its readers? Or is 'batshit' absent when its taken to be absent by some certain number of more-or-less 'normal' adults? [I do not pose these questions rhetorically… btw.)
    _________

    To turn the question back to Trump. Trump's Twitter behavior may be a legendary dumpster fire but I think it would be quite easy to argue that masses of people who follow him take much of what he says as statements of fact. I take your analysis of the Cheryl Jacobus suit above as indicating it would properly be rejected before the batsh!t rule would come into play, i.e. that the Tweets in question all qualified as "opinion", "rhetorical hyperbole”, “vigorous epithet", “lusty and imaginative expression of contempt”, and language used “in a loose, figurative sense”. So let's forget Jacobus and consider a hypothetical defamation suit brought by Michelle Fields against Trump and Lewandowski. Lewandowski tweeted "you are totally delusional… I never touched you. As a matter of fact, I have never even met you,"

    During a CNN town hall, [Trump] claimed that Fields had “grabbed” him in a threatening manner. “She was grabbing me,” Trump said. “When she found out that there was a security camera, and that they had her on tape, all of a sudden that story changed,” Trump said. Earlier in the day, Trump suggested that Lewandowski had actually been trying to help Fields. Fields had been falling, according to Trump, and Lewandowski was just being gentlemanly.

    Of course, Fields did not grab Trump; she was not falling; Lewandowski did grab her arm, pulling her off-balance; he was not being gentlemanly at all; and Fields never changed the factual details of her account.

    Do you think a hypothetical defamation suit by Fields would/should be dismissed because "the general tenor of the entire work negates the impression that the defendant was asserting an objective fact"? I would note that while Trump is clearly 'woofing some of the time, he is not in this mode all of the time, especially in the context of a CNN Town Hall. If the court were to apply the batsh!t crazy rule in such a case, would that precedent trouble you, on the basis that someone credible enough to win the Presidential nomination of the party controlling Congress could make potentially career damaging statements (and potentially provocative towards physical harm) without risk of a defamation judgement, just on the basis of alternating 'serious' political statements with over-the-top 'reality TV' theatricality? (While that question is meant to express a counter-argument, I do not mean it to be rhetorical, as in having what I would consider an obvious definitive answer.)

  20. markm says

    @melK: "Can someone fall under the 'batshit crazy rule' if they hold elected office and are talking about actual or potential actions of that office?"

    I consider most politicians batshit crazy. They keep doing the same things over again (the war on some drugs, for example) or _even_harder_ and expecting different results.

    OTOH, considering that most of them have at least 50 more IQ points than they show in public, they may _know_ they are pushing ineffective, counter-productive, and viciously cruel policies, don't care, and lie their heads off about them. Ken, is there a variety of the "batshit crazy rule" called the ""pants on fire rule"? How does that interact with apparent sociopathy?