New York State Supreme Court Judge Barbara Jaffe has dismissed the defamation case against against President-elect Donald Trump brought by political strategist and TV pundit Cheryl Jacobus. Trump slammed Jacobus during the campaign and said that she “begged him for a job” at one time. Jaffe, however, held that such tweets are manifestly opinion and not facts for the purposes of defamation law. It is perhaps fitting that the first major ruling related to Trump would be over the character of tweets. If upheld, this could be a major new rule. As if on cue, Trump make more headlines today in the wake of the decision on Twitter with a tweet attacking the intelligence agencies saying “Intelligence agencies should never have allowed this fake news to “leak” into the public. One last shot at me.Are we living in Nazi Germany?” That is clearly opinion and hyperbole but the scope of Jaffe’s decision certainly adds a layer of protection not just for Trump but other regular tweeters.
Jacobus insists that the Trump’s campaign invited her to interview for the job of campaign communications director in May 2015. She insists that she withdrew over her disagreement with Trump’s then-campaign manager, Corey Lewandowski. She later went on television in 2016 where she criticized the decision of Trump to skip one of the debates and said that the decision was motivated by her view of Trump as a “bad debater” who “comes off like a third grader faking his way through an oral report on current affairs.” Trump fired back on Twitter and said that Jacobus “begged us for a job. We said no and she went hostile. A real dummy!” Another tweet said Jacobus “begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!”
Jacobus sued for $4 million and disparaged her professional standing. This included tweets that said “turned her down twice and she went hostile. Major loser, zero credibility.”
Jaffe however viewed the tweets as unbelievable as factual statements. While taking some implied jabs at the President-elect for his tweets, she ruled ultimately in deference to the First Amendment. She notes “Trump’s regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable.” The key problem was the use of terms like “beg” which can be highly subjective:
“Trump’s characterization of plaintiff as having ‘begged’ for a job is reasonably viewed as a loose, figurative, and hyperbolic reference to plaintiff’s state of mind and is therefore, not susceptible of objective verification . . . To the extent that the word ‘begged’ can be proven to be a false representation of plaintiff’s interest in the position, the defensive tone of the tweet, having followed plaintiff’s negative commentary about Trump, signals to readers that plaintiff and Trump were engaged in a petty quarrel.”
Jaffe calls Trump’s tweets “simplistic” and basically juvenile, which she viewed as working to his advantage: “His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as ‘loser’ or ‘total loser’ or ‘totally biased loser,’ ‘dummy’ or ‘dope’ or ‘dumb,’ ‘zero/no credibility,’ ‘crazy’ or ‘wacko’ and ‘disaster,’ all deflecting serious consideration.”
Jaffe basically rules that none of the tweets could be taken seriously and refers to “Trump’s schoolyard type squabble.” She does acknowledges that should could create a troubling defense:
“the context of a national presidential primary and a candidate’s strategic and almost exclusive use of Twitter to advance his views arguably distinguish this case from those where heated rhetoric, with or without the use of social media, was held to constitute communications that cannot be taken seriously…. These circumstances raise some concern that some may avoid liability by conveying positions in small Twitter parcels, as opposed to by doing so in a more formal and presumably actionable manner….”
Jaffe also acknowledged that “some of the statements, viewed in isolation, could be found to convey facts” but had greater fear about holding such tweets subject to liability. Accordingly, she held:
“Thus, although the intemperate tweets are clearly intended to belittle and demean plaintiff, any reasonable reading of them makes it ‘impossible to conclude that [what defendants said or implied]…could subject…[plaintiff] to contempt or aversion, induce any unsavory opinion of [her] or reflect adversely upon [her] work,’ or otherwise damage her reputation as a partisan political consultant and commentator…. Indeed, to some, truth itself has been lost in the cacophony of online and Twitter verbiage to such a degree that it seems to roll of the national consciousness like water off a duck’s back.”
There is a legitimate fear for the first amendment in such cases. Both of the principal parties are public figures under the actual malice standard — requiring a high showing for defamation. In cases like New York Times v. Sullivan, the Supreme Court emphasized the need to protect the first amendment from the curtailment or chilling effect of tort liability. This decision is certainly consistent with that view. There remains however some questions as to how far this ruling would go. Jacobus insists that she never sought the job but that the campaign sought her. However, Trump can claim that, regardless of who initiated the discussion, she ultimately expressed an interest in the job and later became hostile. Terms like “dummy” are manifestly opinion.
Nevertheless, as Jaffe acknowledges, the opinion does rely on the character of Twitter itself to question the factual content of such brief communications. That may make appellate judges a bit uncomfortable but it would not necessarily alter the decision on the merits.