Earlier this year in January 2017, a New York judge dismissed a defamation lawsuit against then-President Elect Trump in ruling that offensive language hurled back-and-forth on Twitter are considered to be opinion. New York County Supreme Court Judge Barbara Jaffe stated in her decision that Trump’s regular tweets against his critics “all deflect serious consideration.”

In the lawsuit, Cheri Jacobus v. Donald J. Trump, Political Strategist and Consultant Cheryl Jacobus sought $4 million from Trump and his former campaign manager. She alleged that the presidential candidate and his campaign defamed her by falsely claiming that she “begged” for a communications job with the campaign and sought payback when she wasn’t hired by criticizing Trump during subsequent media appearances.  

Early in 2016, Jacobus appeared on television in a commenter role and panned Trump’s motives for his threat to skip a debate. She said that Trump was a “bad debater” who comes off like a third grader faking his way through an oral report on current affairs. In response, Trump fired off a series of tweets stating that Jacobus “begged us for a job. We said no and she went hostile. A real dummy!” and later he said Jacobus “begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!”

Lee Brenner, partner at Kelley Drye & Warren and chair of the firm’s Media and Entertainment practice group, along with Senior Associate David Jang, recently authored a blog post “Defamation Law Series: Trumping Defamation Cases,” about the defamation cases involving President Trump and how the protections of the First Amendment played a role in the case.

Brenner sat down with Inside Counsel to discuss the Trump lawsuit in more detail. Jacobus’ lawsuit contended that these tweets were based on the untrue assertion that she had begged for a job and was rejected for the position. 

According to Brenner, while the court characterized Trump’s tweets as intemperate, the decision held that tweets stating Jacobus begged for a job should be considered statements of Trump’s opinion protected by the First Amendment: “To the extent that the word ‘begged’ can be proved to be a false representation of plaintiff’s interest in the position, the defensive tone of the tweet, having followed plaintiff’s negative commentary about Trump, signals to readers that the plaintiff and Trump were engaged in a petty quarrel.”

So, the court determined that Trump’s tweets against Jacobus were just opinions, and therefore not libelous. The court relied on the context of Trump’s Twitter reputation – emphasizing that Trump employs a regular use of Twitter to circulate his positions and skewer his opponents who criticize him, including journalists and media organizations whose coverage he finds objectionable.

He attacks others via tweets that are vague and simplistic insults such as ‘loser,’  ‘dummy’ or ‘dope.’ Since Trump has a recognized history of posting derogatory tweets against others, the court determined that his tweets criticizing Jacobus needed to be examined in the same context – part of his opinion and not as defamatory.

“Even though the tweets belittled Jacobus, the court found that no reasonable reading of the comments would reflect adversely on the television commenter and dismissed the case,” explained Brenner. “According to the court, it was impossible to conclude that the tweets damaged Jacobus’ reputation as a political strategist and consultant.”

Further reading:

Stop Spreading the News: A 5-Step Guide to Handling Unlawful Content Posted on Social Media

The Growing Problem of ‘Fake News’

IP’s Connection to Social Media Remains Hot

Worth the ‘Hassel’