In light of Donald Trump’s continued threats of lawsuits implicating First Amendment rights, I thought it might be useful to begin to collect news stories and other information related to such matters. The editors at USA Today did something similar, albeit on a much larger scale, when they listed and analyzed some 3,500 legal actions by and against Mr. Trump (June 1, 2016). “Say something bad about Donald Trump and he will frequently threaten to go to court. ‘I’ll sue you’ was a Trump mantra long before ‘Build a wall.'”
Threats rarely realized: In a July 11, 2016, story, USA Today also reported that “an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows that he rarely follows through with lawsuits over people’s words. He has won only one such case, and the ultimate disposition of that is in dispute.” (Itals added)
“The Republican presidential candidate,”added the USA Today story, “has threatened political ad-makers, a rapper, documentary filmmakers, a Palm Beach civic club’s newsletter and the Better Business Bureau for lowering its rating of Trump University. He’s vowed to sue multiple news organizations including The New York Times, The Wall Street Journal, the Washington Post and USA TODAY. He didn’t follow through with any of those, though he did sue comedian Bill Maher, an author over a single line in a 276-page book, and Miss Pennsylvania.”
Earlier threats: “In 1978, the Village Voice reported Trump threatened to sue one of its journalists. In 1990, the Wall Street Journal said the same happened to reporter Neil Barsky for reporting on Trump’s business record.”
“Trump’s lawyers threatened to sue USA TODAY in 2012 over a column by newspaper founder Al Neuharth which branded Trump a ‘clown,’ noted his casino bankruptcy and said his Trump-branded skyscraper in Tampa never materialized and was a ‘parking lot.’ At the end of the column was a response from Trump because, as was Neuharth’s custom, he sent his columns to those mentioned and gave them a chance to respond right next to his words. In this case, Trump’s ended with a trademark: ‘Neuharth is a total loser!’ Still, a Trump attorney threatened a lawsuit over a series of telephone calls. Trump never sued.” [Source here]
Last lawsuit against a media outlet: “The last time [Mr. Trump] sued a news organization for libel was apparently in 1984. Trump filed the case after the Chicago Tribune’s architecture critic called his proposed 150-story Manhattan skyscraper an ‘atrocious, ugly monstrosity.’ In 1985, a federal judge in Manhattan dismissed the suit, ruling the critic had a First Amendment right to express his opinion. The skyscraper was never built.” [Source: Reuters, October 14, 2016] (See below re September 2016 lawsuit filed by Ms. Melania Trump)
The threat of litigation by “well-funded plaintiffs”
Here is a recent comment from Floyd Abrams: “If a bar association article critical of Mr. Trump must be watered down for fear of litigation, what impact on those who do not have lawyers at hand to defend them can be expected?”
“The costs of defending litigations against well-funded plaintiffs can be overwhelming. And the risks of losing such litigations in an atmosphere in which the nation is so deeply divided are accentuated. These are dangerous times.”
Countersuits: Suing Trump for Defamation?
Diana Falzone, Donald Trump’s accusers could countersue candidate for defamation, lawyers say, Fox News, Oct. 25, 2016
* * * *
In the weeks and months ahead, I plan to post more on this matter with the hope that it will prompt dialogue and debate. Meanwhile, the items listed below provide some backdrop.
___________________
Despite his advocacy for restricting freedom of speech in the United States, Trump said his is a “tremendous believer of the freedom of the press.” (Think Progress, Oct. 24, 2016)
(Credit: Ethan Miller/Getty Images)
October 23, 2016: Donald Trumps threatens to sue sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)
“It’s a way to defend himself, and remind everybody what he has said many times, which is none of this is true,” campaign manager Kellyanne Conway said Sunday on NBC’s Meet The Press. “They’re fabrications, they’re all lies.”
Also, in a recorded interview (video here) Mr. Trump declared: “Our press is allowed to say whatever they want and get away with it. And I think we should go to a system where if they do something wrong . . . . I’m a big believer tremendous believer of the freedom of the press. Nobody believes it stronger than me but if they make terrible, terrible mistakes and those mistakes are made on purpose to injure people. I’m not just talking about me I’m talking anybody else then yes, i think you should have the ability to sue them.”
Pro Bono Offers to Defend Against Defamation Suits
October 14, 2016: “Gibson Dunn partner and media law luminary Ted Boutrous is offering a pro bono defense of news outlets threatened with defamation suits by Donald J. Trump, throwing a BigLaw wrench into the Republican presidential candidate’s efforts to muffle coverage of sexual assault allegations.” [Source here]
→ Laurence Tribe: “Ted and I are in this together, pro bono, along with Ben Wittes and probably quite a few others. If Trump loses, our mission is to protect the women he has abused (and other targets) from being silenced by his threats to sue. If he were to win, we (and many others) will have a broader project on our hands: protecting people from executive abuse.” [October 24, 2016 e-mail to RKLC]
→ FAN 128.1 — Tribe & others form pro bono phalanx to defend against Trump’s threatened defamation lawsuits, October 25, 2016
→ See also Floyd Abrams, American Bar Association’s decision to stifle report criticizing Donald Trump is an ominous sign for future, New York Daily News, October 25, 2016
___________________
October 13, 2016: At a rally in Florida, Mr. Trump stated that “we are preparing” a suit against the New York Times.
New York Times’s lawyer responds to Trump: In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.’”
“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”
Marc Kasowitz, one of Mr. Trump’s lawyers
October 12, 2016: Mr. Trump’s lawyer alleges that the New York Times libeled his client when the newspaper published an article that featured two women accusing Mr. Trump of touching them inappropriately years ago. “Your article is reckless, defamatory and constitutes libel per se,” Marc E. Kasowitz wrote. “It is apparent from, among other things, the timing of the article, that it is nothing more than a politically motivated effort to defeat Mr. Trump’s candidacy.”
→ Mr. Kasowitz demands that the New York Times retract its allegations against Mr. Trump.
October 1, 2016: Mr. Kasowitz, one of Mr. Trump’s lawyers, threatened “prompt initiation of appropriate legal action” against the New York Times for printing parts of his 1995 tax returns from New York, New Jersey and Connecticut.
September 1, 2016: Melania Trump sues Daily Mail for $150 million in damages. Ms. Trump is also suing a blogger, Webster Tarply. Both actions were filed in a Maryland state court. [Source here] [Motion to dismiss here]
Charles Harder
August 22, 2016: Melania Trump threatens defamation suits against news outlets. According to a New York Times report: “In an email, the lawyer, Charles J. Harder, said Ms. Trump, the wife of Donald J. Trump, the Republican presidential nominee, ‘has placed several news organizations on notice of her legal claims against them, including Daily Mail among others, for making false and defamatory statements about her supposedly having been an ‘escort’ in the 1990s.’ . . . He said no suit had been filed, but added, ‘That may change.'” (See also apology & retraction from one of the media outlets, the Inquisitr).
August 14, 2016: Mr. Trump tweets: “It is not ‘freedom of the press’ when newspapers and others are allowed to say and write whatever they want even if it is completely false!”
March 23, 2016: New York judge orders “plaintiffs pay to the defendants $500,000 as a sanction for their conduct in bringing a frivolous claim.” Miss Universe & Donald Trump v. Univision Networks & Studios, Inc. (Plaintiffs’ complaint here; case subsequently removed to federal court).
February 26, 2016: Donald Trump threatens to “open up the libel laws.”
“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. 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 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.” (video clip here)
November 19, 2015: Donald Trump tweets: “Watch [Gov. John] Kasich squirm — if he is not truthful in his negative ads I will sue him just for fun!”
September 21, 2015: Mr. Alan G. Garten, another one of Mr. Trump’s lawyers, sends a letter to Club for Growth’s president, David McIntosh, accusing it of trying to damage Mr. Trump’s reputation by lying about his policies.
Alan Garten, executive vice president & general counsel to The Trump Organization
Here are some excerpts from Mr. Garten’s letter: “In the interest of avoiding what will certainly be a costly litigation process, we are prepared to offer you the one-time opportunity to rectify this matter by providing us with your prompt written assusrances that (i) you have stopped running the attack ads; and (ii) you will not generate or disseminate any misleading or inaccurate information or make any factually baseless accusations you know to be untrue with respect to my client at any point in the future. In the event, however, we do not promptly receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements and the damage you have intentionally caused to my client’s interests as well as pursue all other remedies available to us at law or in equity. [ ¶ ] Please be guided accordingly.”
June 2014: Federal Judge Gonzalo Curiel dismisses Trump’s countersuit defamation suit seeking $1 million against Tarla Makaeff, who was lead plaintiff in a class action against Trump University. (see also here)
April 17, 2013: 9th Circuit denies Donald Trump Institute’s defamation claim: Makaeff et al. v. Trump University LLC (9th Cir., 2016)
December 27, 2012: Letter from Mr. Garten threatens to sue online petition organizer re campaign urging Macy’s to “dump Trump” (US News & World Report story here).
June 6-8, 2012: Mr. Trump first threatened and then sued Miss Pennsylvania contestant, Sheena Monnin, in a defamation suit Trump filed after she posted on Facebook that she thought the 2012 Miss USA Pageant was “rigged.” According to a USA story, “an arbitration ruling upheld by a federal judge ordered her to pay $5 million in damages, although she and Trump eventually settled out of court for an undisclosed lesser amount.”
September 7, 2011: Trump loses libel lawsuit over being called a ‘millionaire.’ According to a Hollywood Reporter story: A state appeals court affirmed “that Trump hasn’t demonstrated that author Timothy O’Brien committed ‘actual malice’ by citing three unnamed sources who estimated the net worth of The Apprentice star to be between $150 million and $250 million.”
As reported in The Atlantic: “In January 2006, Trump filed a $5 billion lawsuit against author Timothy O’Brien and his publisher for understating Trump’s wealth. In his book Trump Nation, O’Brien reported that three people close to Trump had estimated his worth at between $150 and $250 million. Trump, who said he had told O’Brien that he was worth between $4 billion and $6 billion, claimed that O’Brien’s low estimate had hurt his reputation and cost him specific business deals. Trump’s suit was dismissed in July 2009, and his subsequent appeal failed in September 2011.” (see also, Business Wire, January 24, 2006)
* * * *
Related Items
- Floyd Abrams & Ronald Collins, “Confronting Trump — An American Debate Censorship Cannot Stop,” December 18, 2015
- “NY ethics board drops Trump complaint about attorney general,” Associated Press, September 1, 2015
- “Trump delivers on promise to sue chef Jose Andres,” Politico, August 1, 2015
- “Donald Trump still battling lawsuits from defunct Trump University,” CBS/6, July 24, 2015
- “7 times Trump has sued (or threatened to sue) over his wealth and brand,” Yahoo Finance, July 16, 2015
- “The Story of Donald Trump’s lawsuit against Bill Maher Over An Orangutan Joke,” YouTube, July 7, 2014 (see here, too)
- “Donald Trump’s lawyer: NBC in ‘breach’ on Miss Universe contract, CNN, July 5, 2015
- “Trump GC Must Give Deposition In D&O Sanctions Fight,” Law360, March 19, 2014
- Donald Trump Withdraws Bill Maher Lawsuit, Hollywood Reporter, April 3, 2013
See also:
- FAN 127.1 — Trump lawyer to NYT: We will “pursue all available actions” — NYT lawyer: “we welcome the opportunity” to go to court
- FAN 125.1 — 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns
_________
The Court’s 2016-2017 First Amendment Free Expression Docket
Cert. Granted
Pending Petitions*
- Bennie v. Munn
- Augsburg Confession
- Bondi v. Dana’s Railroad Supply
- Flytenow v. Federal Aviation Administration
Cert. Denied
- Armstrong v. Thompson
- Wolfson v. Concannon
- Dart v. Backpage.com
- NCAA v. O’Bannon
- Mech v. School Board of Palm Beach County
- Williams v. Coalition for Secular Government
- Pro-Football v. Blackhorse
Free Speech Related Cases
- Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)
First Amendment Religious Expression Cases
- Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)
- Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)
→ The Court’s next Conference is on October 28, 2016
* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.
Last Scheduled FAN, #128: Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond Hazelwood Ruling
Next Scheduled FAN, #130: November 2, 2016