Anthony Scaramucci, former White House communications director, a man with a temper, a narrow-band vocabulary and an improbably inflated sense of Steve Bannon's flexibility, has threatened a defamation suit over a student op-ed in the Tufts Daily. The threat — made through Scaramucci's counsel, Sam Lieberman of Sadis & Goldberg LLP — is every bit as blustery and frivolous as the players and circumstances would suggest.

In the op-ed, Tufts student Camilo A. Caballero argued that Scaramucci should not sit on Tuft's Board of Advisors. Scaramucci's letter calls out several passages in the op-ed:

A man who is irresponsible, inconsistent, an unethical opportunist and who exuded the highest degree of disreputability should not be on the Fletcher Board.

This is Anthony Scaramucci, a man who began his infamously short career as the White House communications director by uttering profanity-laced comments on national news outlets, the man who sold his soul in contradiction to his own purported beliefs for a seat in that White House and a man who makes his Twitter accessible to friends interested in giving comfort to Holocaust deniers.

(The links in the second passage above are in the original piece.)

Scaramucci's letter also calls out Caballero's November 13, 2017 follow-up op-ed:

In addition, the administration has announced its intentions to invite Scaramucci to campus to discuss his “experiences in the private and public sectors, and lessons learned.” This invitation by Tufts and the Fletcher School, as the first statement/response they have put out since the student/faculty petition, the Tufts Daily op-ed and the Boston Globe article, is a way to give Scaramucci a platform to legitimize his unethical behavior. . . . But as we know now, Scaramucci has shown his intentions while in the White House as well as in his public statements that he cares about gaining attention and nothing more, and we should not let this distract us from what the administration wishes to avoid having to take up and answer.

Lieberman's letter on behalf of Scaramucci is frivolous, thuggish, and an example of the modern trend of people with money believing that they should be protected from criticism through abuse of the legal system.

As I've discussed here many times before, only provable statements of fact can be defamatory. An opinion that does not imply a provably false statement of fact cannot be defamatory and is absolutely protected by the First Amendment. Courts deciding whether a statement is potentially defamatory fact or absolutely protected opinion look at the totality of the circumstances, including the entire context and the viewpoint of people familiar with the publication and the figures discussed. Here, multiple factors rather conclusively establish that the statements Scaramucci complains of are protected opinion. First, the columns are expressly labeled as editorial and opinion. This isn't dispositive but strongly frames the context. Second, the editorials are about a controversial political figure. Courts are far more likely to interpret statements about politics and political figures as opinion rather than fact, and to treat comments therein as rhetorical hyperbole rather than as provable literal fact. Third, the statements are couched in heated rhetoric that makes it far more likely to be treated as opinion — it's difficult to imagine a court that would treat "sold his soul" as a statement of provable fact. Fourth, rather than implying undisclosed and potentially provably false facts, the author repeatedly offers links demonstrating the basis for his opinions. For instance, the statement that Scaramucci "sold his soul" is linked to a scathing opinion piece arguing that Scaramucci's acceptance of a job in the Trump administration contradicted his past rhetoric about the Republican party. Hence, "sold his soul" is clearly a characterization of Scaramucci's decision to accept a job — and notably Scaramucci's letter does not quarrel with any of the underlying factual assertions about what Scaramucci said before about the Republican party. Similarly, Scaramucci complains that the op-ed says he gave comfort on Twitter to Holocaust deniers. Once again, the author provided a link establishing what he was talking about — an imbecilic Scaramucci Post tweet asking Twitter users to vote on how many Jews were killed in the Holocaust, as if historical facts are resolved by a vote on a platform squirming with bigots and trolls. Once again, this is an argumentative characterization of Scaramucci's action, not a provably false statement of fact.

Lieberman's letter strains mightily to distinguish well-established law that would demonstrate that these claims are frivolous. For instance, Lieberman cites Van Liew v. Eliopoulos, 84 N.E.2d 898 (2017), a recent Massachusetts Court of Appeal case, for the proposition that accusing someone of "ethical violations" could be defamatory rather than merely opinion. That case is not remotely apt and the citation is highly misleading. In Van Liew, the plaintiff established that the defendant had made specific provably false statements of fact: that the plaintiff was under investigation by the Attorney General's office, that he lied to officials, and that his actions in connection with a sale of property were in violation of specific ethical rules governing his position as a public official. In other words, the case involved specific allegations about specific actions, not a general rhetorical allegation that the plaintiff was unethical. The citation to the case is empty and cynical.

Lieberman's letter also engages in a rhetorical trick I expect to see on Twitter and Reddit, not in a letter from an attorney. Lieberman cites a series of cases saying that accusing Scaramucci of lack of ethics is "defamation per se." But "defamation per se" refers to the doctrine that, with respect to certain types of defamation, the plaintiff need not specially prove damages, because some amount of damages will be presumed. The doctrine does not excuse the plaintiff from any of the other elements of a defamation case — like proving that the statement is a provably false statement of fact or that the speaker (in the case of a public figure) knew it was false or acted with reckless disregard as to its falsity.

Lieberman's letter ends by piling on more argument about Scaramucci's moronic Twitter poll about the Holocaust. This is simply insipid. The op-ed, which linked to the story about the tweet, self-evidently offers a non-provable opinion that taking Twitter polls about Holocaust deaths gives comfort to Holocaust deniers. As I've discussed here repeatedly before, characterizing someone's actions as racist is classic opinion. Lieberman cites Herlihy v. Metro. Museum of Art, 608 N.Y.S.2d 770 (1994) for the proposition that an accusation of antisemitism can be defamatory. Once again Lieberman is misleading the reader. In Herlihy the plaintiff accused the defendant of entirely fabricating a series of antisemitic statements by the plaintiff; the case did not involve a dispute over whether the plaintiff's actions could be characterized as racist. Put another way, the defamation there was claiming the plaintiff said something she didn't say at all, not arguing that her undisputed words made her racist.

Scaramucci's letter is vexatious, meritless, dishonest, and thuggish. A decent lawyer would not draft it and a decent man would not have it sent on his behalf. It represents the growing trend of the wealthy leveraging a broken legal system to suppress criticism. It is entirely consistent with Scaramucci's past conduct as a vain, bumbling lout, and inconsistent with his attempts to rehabilitate himself. For shame.

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