Trump Can’t Commit Twibel Because He Routinely ‘Deflects Serious Consideration’–Jacobus v. Trump
A confession: I do not follow @RealDonaldTrump at Twitter because I have a strict policy against following trolls. Life is too short. As we all know, Trump regularly engages in many disfavored tweeting practices: ad hominen attacks; self-promotion; dissemination of mockably not-credible (and sometimes outright false) information; countless incidents of hypocrisy; and so much more. If he doesn’t change how he tweets starting Friday, I expect we’ll see frequent litigation tsunamis over tweets that are illegal for government employees to make.
Fortunately for Trump, he dodged an early legal test of his reckless tweeting. I’m not going to recap the lawsuit’s facts because, as with all things Trump, the facts don’t matter. Instead, the standout feature is how Judge Barbara Jaffe repeatedly mocks and denigrates our soon-to-be president’s tweeting practices. Some quotes:
* “the defensive tone of the tweet, having followed Plaintiff’s negative commentary of Trump, signals to readers that the Plaintiff and Trump were engaged in a petty quarrel.” Engaging in petty quarrels is not on my list of top 10,000 attributes I’d like from my president. Yet, as Hillary Clinton said, Trump is “a man who can be baited by a tweet.”
* “Trump’s regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him” (citing the New York Times article The 289 People, Places and Things Donald Trump Has Insulted on Twitter: A Complete List).
* “His tweets about his critics, necessarily restricted to 140 characters or less, are rife with simplistic and vague 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.”
* “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….Nevertheless, consistent with the foregoing precedent and with the spirit of the First Amendment, and considering the statements as a whole (imprecise and hyperbolic political dispute cum schoolyard squabble), I find that it is fairly concluded that a reasonable reader would recognize defendants’ statements as opinion, even if some of the statements, viewed in isolation, could be found to convey facts.”
* “the intemperate tweets are clearly intended to demean and belittle plaintiff”
* “to some, truth itself has been lost in the cacophony of online and Twitter verbiage to such a degree that it seems to roll off the national consciousness like water off a duck’s back.” (cite to Farhad Manjoo, How the Internet Is Loosening Our Grip on the Truth). In other words, Twitter has contributed to an era of post-truth liars.
Superficially, this looks like a great defense-side Twibel ruling. Most tweets are just too short to contain actionable facts, and Twitter’s prioritization of soundbites and zingers should indeed reduce readers’ expectations that any particular tweet offer a credible factual statement.
However, this case’s analysis may be too Trump-specific to help out defendants in most cases. Trump has developed a world-wide, and world-class, reputation as a Twitter troll, something that most other Twitter users can’t claim. The judge thinks that everyone knows Trump routinely disseminates not-credible information on Twitter, so no one could possibly take his tweets seriously. Unfortunately, this isn’t correct. While most readers know that Trump’s Twitter feed is garbage, millions of Americans inexplicably still treat his tweets as a credible information source. As a result, Trump’s “intemperate tweets,” “clearly intended to demean and belittle” people, have significant real-world consequences (e.g., stockholders lost money because Trump made an “intemperate” and factually misguided tweet about Boeing). So even if most Americans recognize Trump’s tweets as disinformation and pathetic attempts to garner attention and “deflect serious consideration,” the court should not ignore that millions of Americans aren’t on that program (yet?).
Worse, this ruling is an early warning about how judges will handle the onslaught of cases where our leaders test legal limits. An independent judiciary is an essential part of our system of checks-and-balances; and as Congress and Trump compete with each other to see who can do more to undermine the rule of law, the judiciary is our last line of defense against our country devolving into anarchy. This judge’s ruling generally relies upon and appropriately cites the precedent, but it nevertheless bends the rules in favor of Trump–especially the part where the court acknowledged that individual tweets conveyed facts but still disregarded those. I hope future judges won’t bend legal standards to give Trump a free pass as he methodically attacks our legal limits on the executive branch.
Finally, it’s a Sisyphean task trying to compile Trump’s acts of hypocrisy, but I’ll nevertheless highlight that Trump won this ruling because of defense-favorable libel doctrines–the same doctrines he threatens to dismantle when he pledges to “open up libel law.” Trump should be held accountable for his words, but we cannot let demagogues–who fear a free press–promulgate legal doctrines to suppress the press from doing its job.
Case citation: Jacobus v. Trump, 2017 WL 160316 (N.Y. Sup. Ct. Jan. 10, 2017)
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