The latest defamation suit against Donald Trump has emerged. Summer Zervos, recently famed for her accusation that Trump sexually assaulted her in 2007, filed suit against Trump in state court in New York, accusing Trump of defaming her in the course of denying her accusations. The suit follows a recent trend in cases against public figures: the plaintiff accuses the public figure of sexual misconduct well outside the statute of limitations, then sues the public figure or his representatives based on their response. I'm not a fan of the public figures at issue nor of this legal approach.

The main legal issue in play is the distinction between provable statements of fact, which are potentially defamatory when false, and statements of opinion and hyperbole, which are not unless they imply false statement of fact. For instance, "Ken is a jackass" is not defamatory (it's not provable fact, it's an insult and hyperbole), but "Ken is a convicted felon" is defamatory (it states a false provable fact), and "Ken is guilty of a crime" may or may not be defamatory depending on the circumstances. (It would be opinion if uttered in response to a newspaper article about me; it could imply false facts and be defamatory if, for instance, the speaker suggested that he or she reached the conclusion after reviewing my emails or seeing an undisclosed police report.)

In Zervos' case, the statements at issue involve denials of Zervos' allegations and attacks on her credibility after her accusation of sexual assault. Zervos complains that Trump (1) denied that he'd ever met her in the hotel she described, (2) drafted her cousin's statement saying she'd only praised Trump in the past and was trying to get back on television, (3) called her allegations a hoax, phony, lies, false, made up, fabricated, and a smear for political or financial purposes, and (4) suggested her allegations had been "proven false."

Calling someone a liar is not automatically fact or opinion; it depends on the circumstances. Sometimes it's treated as figurative opinion. See, e.g., Morningstar, Inc. v. Superior Court, 23 Cal.App.4th 676, 691 (1994) (titling article “Lies, Damn Lies, and Fund Advertisements” not actionable as libel because it “cannot reasonably be read to imply a provably false factual assertion”). Courts are more likely to interpret statements as hyperbole, figurative speech, or opinion in some contexts, including politics and litigation. See, e.g., Information Control v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980) (attorney's press statement that a lawsuit was a way to avoid a debt was opinion because in context of legal dispute, “language which generally might be considered as statements of fact may well assume the character of statements of opinion.”)

Here, the better argument is probably that at least some of Trump's statements were assertions of provable fact. He wasn't merely characterizing the merits of a case that relied in part on subjective factors. He wasn't merely disputing her characterization of an encounter as sexual assault. He was specifically claiming based on his own personal knowledge that Zervos was lying about whether a specific incident happened at all — that is, he was making a factual claim about her. By contrast, some of his typical Trump bluster — that she was doing it for politics or money — is probably non-factual opinion. Some of Bill Cosby's accusers made defamation claims that survived a motion to dismiss based on significantly more ambiguous denials, and I suspect Zervos will survive a motion to dismiss here.

Next, there's a relevant legal privilege that Trump may assert. A privilege, in this context, is a defense that shields a statement from defamation liability even if it's false. Privileges can be absolute (meaning that the statement is immune from suit even if the speaker knew it was false) or qualified (meaning that the statement is immune from suit unless the speaker knew it was false — that is, it's immune from defamation on a negligence theory). Most jurisdictions, for instance, have an absolute litigation privilege — you can't be sued for defamation based on what you say in court or in a court pleading. A few jurisdictions have what's called a "self-defense privilege" — a privilege that covers responses to accusations. That's the privilege Bill Cosby tried unsuccessfully to invoke in his I-didn't-do-it defamation case. New York doesn't have something called a "self-defense privilege," but it does have an applicable privilege that applies when a statement is "fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned." New York courts apply that privilege to public statements made to defend the speaker from an accusation of wrongdoing. But it's a conditional privilege, and doesn't apply to a statement made with malice — meaning with knowledge that the statement is false or with recklessness as to its falsity. Here Zervos explicitly claims Trump knew he was lying. Trump can't get rid of the complaint before trial based on this privilege; it's a trial defense. Frankly it's not a defense that fits well to a pure he-said-she-said situation.

Trump is going to have a very hard time getting rid of this case in a motion to dismiss, and perhaps can't even get rid of it on a motion for summary judgment. It's not clear whether he's willing to invoke what would be the most effective defense, a variation on the distinction between opinion and fact: nobody sensible takes anything Trump says as a provable statement of fact. Rather, rational people increasingly recognize that anything Trump says is "serious" but not "literal" — an assertion of interest or ambition or anger, but not a statement meant factually. If Trump says it, it's probably opinion, insult, and hyperbole, whether or not it comes clothed in nominal fact.

That's the defense I suggested Trump ought to invoke in Cheryl Jacobus' defamation case against him:

In defamation law, there's a popular philosophical question: can someone be "defamation-proof"? That is, can someone's reputation be so awful that no falsehood can make it any worse? There's a flip-side of this as well: can someone be so notoriously full of shit that they are incapable of defamation, because no reasonable person familiar with them would interpret anything they say as provable fact? This is what I call the batshit crazy rule and the Ninth Circuit more decorously refers to as "general tenor of the entire work." I think Trump — or at least Trump on Twitter — presents a good test case of the batshit crazy rule. Trump's Twitter behavior is such a legendary dumpster fire that I think Jacobus will find it very difficult to argue that anyone familiar with it would take what he says as a statement of fact. Sad!

The trial court in Jacobus' case actually relied upon something like that argument in dismissing her case, though in considerably more genteel terms. Any putative factual statement by or on behalf of Trump, the court said, has to be taken in the context of the way Trump habitually acts, which cuts against a literal interpretation:

Moreover, the immediate context of defendants' statements is the familiar back and forth between a political commentator and the subject of her criticism, and the larger context is the Republican presidential primary and 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. (See eg Jasmine C. Lee & Kevin Quealy, The 289 People Places and Things Donald Trump Has Insulted on Twitter: A Complete List, The Upshot, NY Times [digital ed], Dec. 6, 2016, http://www.nytimes.com/interactive/2016/01/28/upshot/donald-trump-twitter-insults.html [accessed Jan. 8, 2017]). 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. (Id.; see Technovate LLCv Fanelli, 49 Misc 3d 1201[A], 2015 NY Slip Op 51349[U], *4 [Civ Ct, Richmond County 2015] ["On-line speech often is characterized by the use of slang, grammatical mistakes, spelling errors, and a general lack of coherence."]; Ellyn M. Angelotti, Twibel Law: What Defamation and Its Remedies Look Like in the Age of Twitter, 13 J High Tech L 430, 433 [2013] ["The informal nature of conversation on Twitter tends to encourage people to talk more freely about others, including the spreading of rumors and potential falsehoods."]).

Put another way, it is a matter of judicial record that the new President of the United States is habitually full of shit. This is optimal for a defamation defense, if perhaps not for America.

Zervos has an excellent chance of surviving a motion to dismiss and even a motion for summary judgment. But even leaving aside a rehash of Clinton-era squabbles over executive privilege, she has an uphill battle at any trial.

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