Judges Green-Light Trump’s Speech-Chilling SLAPP Suits
Donald Trump is no stranger to filing vexatious, speech-chilling SLAPP suits. For a guy whose supporters pretend he is a big “free speech” supporter, it’s kind of astounding how frequently Trump sues people and companies over speech he dislikes.
Unfortunately, judges have allowed the cases to move forward in two separate recent SLAPP suits. It doesn’t mean that Trump will win. In the end, he’s almost assured of losing both cases. But, the lack of a robust, strong set of anti-SLAPP laws means that Trump gets to run up the legal bills of defendants in pursuing these vexatious lawsuits.
To understand the issues in both cases (and why both should have been dismissed), it’s helpful to know about two separate Supreme Court cases from the early 1990s: Milkovich v. Lorain Journal and Masson v. New Yorker Magazine. Both of these cases remain key cases in First Amendment/defamation law today, and it feels like the judges in these cases misunderstood (or ignored) them.
In Milkovich, which (surprisingly and oddly) rejected the premise that opinion is automatically protected by the First Amendment, the Supreme Court may have (accidentally) established more useful standards for what can and (more importantly) what cannot be subject to defamation claims. It setup the idea that for something to be provably false, it had to be capable of being proven true or false. It also established that “rhetorical hyperbole” and “loose, figurative language” did not qualify as defamatory.
And thus, since then, it’s common for defamation defendants to point to “rhetorical hyperbole,” “loose figurative language,” and how the statements at issue are incapable of being proven true or false. This is also where the importance of disclosing the facts that are the basis of an opinion becomes important. Because courts have said that if you give an opinion that implies some undisclosed facts, that can be defamatory. But if the basis of your opinion is disclosed, then it’s not defamatory.
The Court said in Masson that if someone gets something technically false, but the overall gist of it is “substantially” true, then it is also not defamation. The court noted that having to face defamation claims of “minor inaccuracies” would create real problems, and open up a flood of vexatious lawsuits.
Now, on to the Trump cases. In the first case, in Florida state court, Trump had sued the Pulitzer Prize board for awarding Pulitzer Prizes to the Washington Post and the NY Times in 2018 for their reporting on attempted Russian interference in the 2016 Presidential election. Trump and friends have long insisted that this was all a “hoax.”
Of course, the reality is a lot more complicated. Today, lots of people recognize that there is tremendous evidence that Russia attempted to influence the election in multiple ways. There is also evidence that those in Trump’s orbit were happy to accept that help.
It is true that there was the Steele dossier that made the rounds and was basically full of unproven and highly questionable rumors, many of which seem unlikely to be true. Some Trump haters were quick to jump on the confirmation bias bandwagon and assume every awful claim must have been true, or that some grand conspiracy would be revealed. Finally, Trumpworld has focused on the supposed lack of “collusion” (a non-legal term) because the Robert Mueller report (which did find the other facts above) did not say there was “collusion” between the Russians and Trump.
Trump and his orbit have portrayed a few Democrats being a bit too credulous about the details (and the false claim that everyone said there was “collusion”) as proof that everything was a “hoax.” But that’s not what the evidence shows at all, and none of the underlying reporting that won the Pulitzer Prize appears to be based on those exaggerated claims.
Either way, Trump threatened to sue the Pulitzers multiple times for not taking away the awards. Finally, he did sue in a Florida state court after the Pulitzer Board posted a statement saying that they had gone through a “formal process” to review the winners of the award from 2018:
The Pulitzer Prize Board has an established, formal process by which complaints against winning entries are carefully reviewed. In the last three years, the Pulitzer Board has received inquiries, including from former President Donald Trump, about submissions from The New York Times and The Washington Post on Russian interference in the U.S. election and its connections to the Trump campaign–submissions that jointly won the 2018 National Reporting prize.
These inquiries prompted the Pulitzer Board to commission two independent reviews of the work submitted by those organizations to our National Reporting competition. Both reviews were conducted by individuals with no connection to the institutions whose work was under examination, nor any connection to each other. The separate reviews converged in their conclusions: that no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes.
Trump sued not over the failure to rescind the award, but over that statement, which he claimed was defamatory. You can read that statement multiple times and struggle with what could possibly be defamatory in it, but it goes back to the issue discussed above: the Pulitzer Board talks about the “two independent reviews” which implies some undisclosed facts that could be defamatory. Probably aren’t. But, the court says that at this stage of the game, that’s enough to allow the case to move forward.
The court lists out seven (?!?) facts that went undisclosed in that statement, such as what the “established formal process” was, the identity of the “independent reviewers,” the vagueness of what the reviews actually found or what they relied on, and more.
Of course, it’s difficult to see how any of this could possibly be defamatory. The board claims they did an investigation and found nothing wrong. That’s the factual statement. It seems like an easy case for the court to dismiss, but the judge says that because of all those undisclosed facts, the case should move forward.
But, it also means that the case could still be dismissed later in the process. But this is why SLAPP suits succeed. Courts will often allow vexatious lawsuits like this to keep moving forward and get super expensive.
The other case, in a Florida federal court, was filed earlier this year, against ABC and George Stephanopoulos over an interview he conducted with Rep. Nancy Mace. Stephanopoulos presses her on her support for Donald Trump, claiming that the juries in the E. Jean Carroll cases had “found him liable for rape.”
If you remember the details of the case, you’ll recall that the jury had found him guilty of sexual assault, but had not gone so far as to say he had been found guilty of rape under NY’s law. When I first saw the case, I actually thought this one might be stronger than usual. Except, in looking at the details, you realize that it should be easily dismissible as “substantially true.” That’s because even the judge in the E. Jean Carroll case had noted that the failure of the jury to find him guilty of “rape” in the legal sense rested on the apparently bizarrely narrow definition of rape in New York.
As Judge Lewis Kaplan wrote in response to Trump claiming that Carroll defamed him in continuing to say that Trump “raped” her after the jury verdict, it was substantially true that in a colloquial sense, he did:
The only point on which Ms. Carroll did not prevail was whether she had proved that Mr. Trump had “raped” her within the narrow, technical meaning of a particular section of the New York Penal Law – a section that provides that the label “rape” as used in criminal prosecutions in New York applies only to vaginal penetration by a penis. Forcible, unconsented-to penetration of the vagina or of other bodily orifices by fingers, other body parts, or other articles or materials is not called “rape” under the New York Penal Law. It instead is labeled “sexual abuse.”
As is shown in the following notes, the definition of rape in the New York Penal Law is far narrower than the meaning of “rape” in common modern parlance, its definition in some dictionaries,2 in some federal and state criminal statutes,3 and elsewhere.4 The finding that Ms. Carroll failed to prove that she was “raped” within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump “raped” her as many people commonly understand the word “rape.” Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.
Given those details, it seems like a “substantially true” argument should have gotten the case dismissed.
But, the judge has refused to dismiss the case at this stage. Judge Cecilia Altonaga is well aware of what Judge Kaplan said. Indeed, a big part of the ruling is about whether or not this case is barred due to Judge Kaplan’s ruling in NY on basically the similar facts. But here, Judge Altonaga says it’s not actually the same facts (which probably makes some amount of sense).
From there, she finds the “substantial truth” argument lacking, specifically because Stephanopoulos was directly referring to the jury’s findings, rather than using the term colloquially.
Here, of course, New York has opted to separate out a crime of rape; and Stephanopoulos’s statements dealt not with the public’s usage of that term, but the jury’s consideration of it during a formal legal proceeding. Thus, while Defendants’ cited cases are compelling, they are not directly responsive to the issue of whether it is substantially true to say a jury (or juries) found Plaintiff liable for rape by a jury despite the jury’s verdict expressly finding he was not liable for rape under New York Penal Law.
And thus, she says the case should move forward and have a factfinder (i.e., a jury) determine whether or not the statements are defamatory.
While Judge Altonaga admits that Judge Kaplan’s statement bolsters the argument from Stephanopoulos, it would only matter here if he had presented what the jury actually found and then noted in his interview with Mace that Judge Kaplan had said that this was the equivalent of what most people think of as rape.
And thus the case moves forward.
I think both decisions are wrong, but they’re not so blatantly, obviously wrong as some other cases. In both cases, it’s still quite likely that Trump loses the suits (if they reach conclusion, which they very well might not). But, of course, these kinds of rulings only encourage more vexatious SLAPP suits. Getting past a motion to dismiss is often the goal of SLAPP suits, because the cost to the defendants starts to go up massively at that stage. And if the goal is just to burden the speaker with massive legal fees, getting this far succeeds.
These two cases, yet again, show why we need strong anti-SLAPP laws both at the state and federal levels. The usual point of vexatious defamation suits is to run up the costs for defendants and to create chilling effects to stop others from speaking. Getting past the motion to dismiss stage almost certainly succeeds in those goals.