It’s a good thing that Donald Trump’s plan to loosen existing legal protections for those who badmouth public figures hasn’t yet taken effect. Because the presumptive Republican presidential nominee took advantage of those protections today in a legal filing in a defamation suit filed against Trump and his former campaign manager, Corey Lewandowski, by a cable news pundit. (Trump’s presidential campaign is also listed as a defendant).
In a just-filed motion for dismissal of the suit, attorney Lawrence S. Rosen argues that the plaintiff in the case, cable news commentator and Republican strategist Cheri Jacobus, is a just such a public figure. “Because the alleged statements cannot be objectively characterized as true or false, plaintiff also cannot meet the added pleading requirement of ‘actual malice’ required for ‘public figures’ in defamation claims,” Rosen wrote in a footnote in the filing. “By plaintiff’s own complaint allegations, there can be no dispute here that she too is a ‘public figure or, at the very least, a ‘limited public figure,’ as she has clearly “thrust [herself] to the forefront of [a] particular public controvers[y] in order to influence the resolution of the issues involved.”
Advancing the case that Jacobus is a public figure amounts to smart lawyering from the Trump side. After all, years of precedent have established the principle that defaming a public figure is an exceedingly difficult thing to do: The remarks in question must be made either with knowledge of their falsity or with reckless disregard for the truth. That high bar has assisted news outlets over the years as they have reported on the shortcomings and scandals of boldface names, like Donald Trump.
The resulting difficulty of suing the pants off broadcasters and newspapers has quite clearly frustrated Trump, as he explained in a February appearance in Fort Worth:
One of the things I’m going to do, and this is going to make it tougher for me … but one of the things I’m going to do if I win … is I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So that when the New York Times writes a hit piece, which is a total disgrace, or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.
Again: It’s precisely those laws that Trump himself is relying upon to beat back the suit from Jacobus.
Jacobus, the founder of Capitol Strategies PR, claimed in her April complaint that Trump and Lewandowski falsely maligned her on Twitter and elsewhere after she’d made critical comments about the Trump campaign on cable news. On the night of Feb. 2, CNN host Don Lemon chatted with Jacobus about Trump’s claims to have self-financed his campaign. “Look, Donald Trump also had a superPAC that he started out with, and he lied about it, and they had to quickly shut it down. He got $100,000 from his daughter’s in-laws for that superPAC and he attended two fundraisers for that superPAC. And also another reason he shut it down is when he went to the three big billionaire donors … they turned him down. … So this business about bragging that he’s self-funding is only because he went to the traditional Republican money, and they didn’t want him,” said Jacobus.
Trump’s displeasure, as usual, surfaced on Twitter that night:
“Great job on @donlemon tonight @kayleighmcenany @cherijacobus begged us for a job. We said no and she went hostile. A real dummy. @CNN”
A few days later he tweeted:
“Really dumb @cheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility.”
In a “Morning Joe” appearance, Lewandowski repeated the bit about Jacobus seeking a job with the Trump campaign.
Not so, alleged Jacobus in her complaint: It was the Trump campaign that sought her out. As a result of the Trump-Lewandowski commentary about her, Jacobus’s “hits” on cable news programs “all but dried up,” reads her complaint.
In the motion for dismissal, Rosen argues, in essence, that not all unpresidential language is libelous language: “[C]alling a person ‘a real dummy’ or a ‘major loser,’ or saying that a person has ‘zero credibility,’ may be subjectively offensive to that person, but it does not change the legal reality that the statements—as offensive as they may be to the plaintiff—are protected opinion speech, and thus not defamatory as a matter of law,” writes the attorney. More on that matter here.
Rosen also addressed what appears to be “underlying” Jacobus’s claim against Trump and Lewandowski: “[H]er belief that the defendants’ statements implied that her own criticism of the Trump campaign in the national news media was motivated by the fact that she was upset because she was not hired for employment by the campaign.” Here, the Trump-Lewandowski lawyer argues that his clients were merely asserting their opinions about Jacobus’s state of mind: “In accordance with this rule of law, the courts have repeatedly dismissed defamation claims where the alleged defamatory statements constituted opinions about a plaintiff’s state of mind or personal motivations.”
Who knows whether the motion will find favor with the New York State Supreme Court, where the case is lodged. What’s certain is that Trump continues to benefit from a legal system that he says he wants to dismantle.