By Susan E. Seager
Donald J. Trump is a libel bully. Like most bullies, he's also a loser, to borrow from Trump's vocabulary.
Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics.[1]
But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court.
This article examines seven speech-related cases brought by Trump and his companies, which include four dismissals on the merits, two voluntary withdrawals, and one lone victory in an arbitration won by default. Media defense lawyers would do well to remind Trump of his sorry record in speech-related cases filed in public courts when responding to bullying libel cease-and-desist letters.
Trump's lawsuits are worthy of a comedy routine, as when Trump sued HBO comedian Bill Maher for suckering Trump into sending his birth certificate to prove he was not the "spawn" of an orangutan, and Trump hit back with a $5-million breach-of-contract lawsuit, only to withdraw it after the Hollywood Reporter ridiculed it. Can anyone say Hustler v. Falwell?[2]
Orangutans and joking aside, this examination of Trump's libel losses also provides a powerful illustration of why more states need to enact anti-SLAPP laws to discourage libel bullies like Trump from filing frivolous lawsuits to chill speech about matters of public concern and run up legal tabs for journalists and critics.
A. Trump Sues Architecture Critic
Trump filed his first and crankiest libel lawsuit in 1984 against the Chicago Tribune and the newspaper's Pulitzer Prize-winning architecture critic, Paul Gapp. Trump filed his libel lawsuit in the U.S. District Court in the Southern District of New York.[3] Trump claimed he suffered $500 million in damages.[4]
Gapp, who won the Pulitzer Prize for criticism in 1979, dared to publish a "Design" column in the Sunday Tribune Magazine on August 12, 1984 ridiculing Trump's proposal to build the tallest building in the world: a 150-story, nearly 2,000-foot tall skyscraper on a landfill at the southeast end of Manhattan.[5]
Gapp wrote that Trump's planned office tower was "one of the silliest things anyone could inflict on New York or any other city" and a kind of "Guinness Book of World Records architecture." Gapp's column said the "only remotely appealing aspect" of Trump's planned office tower was that it would "not be done in the Fence Post Style of the 1970s." The architect critic slammed the already-built Trump Tower as a "skyscraper offering condos, office space and a kitschy shopping atrium of blinding flamboyance." Gapp wrote that Trump's claim that the 150-story skyscraper would architecturally balance the two World Trade Center towers on the opposite side of lower Manhattan was mere "eyewash."[6]
Gapp also gave an interview to the Wall Street Journal, telling a reporter that Trump's plan was "aesthetically lousy" and complaining that the central part of Chicago "has already been loused up by giant-ism."
Trump filed a libel lawsuit in New York, claiming that Gapp's criticisms in the Tribune and the Journal were false and defamatory.
Trump added an implication allegation, alleging that the Tribune artist's conception of his planned building made the proposed skyscraper look like "an atrocious, ugly monstrosity" – injecting words that were never used by Gapp – and claimed that Gapp's statements and the Tribune illustration "torpedoed his plans" to build the office tower.[7]
The Tribune and Gapp filed a Rule 12(b)(6) motion to dismiss on the grounds that Gapp's statements and the artist's rendering were protected opinions, and U.S. District Judge Edward Weinfeld agreed, granting the motion to dismiss.[8]
Judge Weinfeld gave Trump a lesson in the First Amendment and politics: "Men in public life ... must accept as an incident of their service harsh criticism, ofttimes unfair and unjustified – at times false and defamatory – and this is particularly so when their activities or performance may ... stir deep controversy" .... "De gustibus non est disputandum, there is no disputing about tastes."[9]
Judge Weinfeld, then 84, reaffirmed the First Amendment rule that "[e]xpressions of one's opinion of another, however unreasonable, or vituperative, since they cannot be subjected to the test of truth or falsity, cannot be held libelous and are entitled to absolute immunity from liability under the First Amendment."[10]
Judge Weinfeld explained that opinions expressed in the form of "rhetorical hyperbole," "rigorous epithets," and "the most pejorative of terms" are protected from liability, so long as the opinions do not veer to into factual accusations, such as accusing someone of a crime, unethical conduct, or the lack of professional integrity in a manner that would be proved true or false.[11]
Judge Weinfeld stated that "this court has no doubt that the statements contained in the Tribune article are expressions of opinion."[12] The court held that the "Design" heading and title "architecture critic" informed the reader that the article "embodies commentary" and is "cast in subjective terms," especially since calling a building "one of the silliest things" and not "appealing" are "highly personal and subjective" judgments." While "many ... would disagree with Mr. Gapp's view ... there is no way the Court could instruct a jury on the process of evaluating whether [a] statement is true" when it comes to such "aesthetic matters."[13]
The court also rejected Trump's claim that the Tribune artist's rendering of the proposed tower was "false" because it allegedly misrepresented his architectural plan.
Judge Weinfeld held that the sketch was not factual because it was described as an "artist's conception" and even if the drawing did imply that the planned 150-story tower was "an atrocious, ugly monstrosity," this is "precisely the same sort of individual, subjective aesthetic opinion" that is not capable of being subjected to "factual proof."[14]
The court also called out Trump's doublespeak to which the American public is now quite familiar.
Trump argued that the artist's illustration in the Tribune did not accurately depict "his proposal" for the building's specific "tapered" design, but "at the same time" Trump was "equally vehement in declaring that he has no plans and has not even engaged an architect." Judge Weinfeld said: "Plaintiff cannot have it both ways."[15]
Of course this was not painless victory for the Chicago Tribune; it spent $60,000 in legal fees to win the motion to dismiss.[16]
New York's anti-SLAPP statute is limited to claims arising from the right to petition the government, and does not protect speech outside of government proceedings, so the Tribune and Gapp could not use the statute to dismiss the libel claim. If New York had a SLAPP statute that protected speech about matters of public concern, the Tribune and Gapp could have argued that they were being sued over speech about a matter of public concern and brought a quick motion to dismiss based on their absolute immunity for opinion and sought reimbursement of their $60,000 in legal fees from Trump.[17]
B. Trump Sues Book Author for Saying He Is Not a Billionaire
Trump's next big libel lawsuit was filed in New Jersey state court more than 20 years later.
This time, Trump alleged a whopping $5 billion in damages[18] in his 2006 libel lawsuit against book author Timothy O'Brien and his book publishers, Time Warner Book Group, Inc. and Warner Books, Inc.[19]
Trump's lawsuit claimed that O'Brien's 2005 book, TrumpNation, The Art of Being The Donald, falsely reported that Trump was "only" worth between $150 million to $250 million, nowhere near the net worth claimed by Trump, which ranged from $4 billion to $5 billion to $6 billion to $9.5 billion.[20] Trump sued for libel, claiming he was really, really worth billions of dollars.
Once again, Mr. Trump saw his libel lawsuit tossed out of court, this time by New Jersey Superior Court Judge Michele M. Fox, who granted the defendants' motion for summary judgment based on no actual malice, which was affirmed by a New Jersey appellate court.[21]
"Nothing suggests that O'Brien was subjectively aware of the falsity of his source's figures or that he had actual doubts as to the information's accuracy," the New Jersey appellate court ruled.[22]
The appellate court concluded that "there is no doubt that Trump is a public figure" and that he failed to meet his burden of proving the book's statements about his net worth millions was false was published with actual malice.[23] "Nothing suggests that O'Brien was subjectively aware of the falsity of his source's figures or that he had actual doubts as to the information's accuracy," the New Jersey appellate court ruled.[24]
The court held that O'Brien, an experienced financial reporter and then the Sunday Business section editor at the New York Times, relied on three confidential sources who gave "remarkably similar" estimates of Trump's actual net worth of between $150 million to $250 million.[25]
Earlier in the litigation, a different trial court judge ordered O'Brien to produce the names of his confidential sources, but the New Jersey appellate court reversed, holding that the New Jersey's qualified reporter's privilege protected O'Brien's right to keep the identities of his confidential sources.[26] O'Brien produced his notes from his interviews of those confidential sources in discovery, however.
The appellate court also rejected Trump's argument that O'Brien published with knowing falsity because O'Brien rejected the financial information provided by Trump before the book was published.
The court found that "it is undisputable that Trump's estimates of his own worth changed substantially over time and thus [Trump] failed to provide a reliable source" to O'Brien to rebut the confidential sources.[27]
Trump and his accountant were their own worst enemies in their depositions. The accountant who prepared Trump's 2004 Statement of Financial Condition admitted at his deposition that he never verified whether Trump had been honest in listing all his debts and liabilities for the accountant's report, which Trump had provided to O'Brien for the book.[28]
Trump was even more unreliable in his testimony about his net worth:
Q: Now Mr. Trump, have you always been completely truthful in your public statements about your net worth of properties?
A: I try.
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