Winston Churchill once said, "A joke is a very serious thing." Apparently, Donald Trump agrees, as he filed suit in Los Angeles County Superior Court in February against comedian Bill Maher for breach of contract. Trump has since either developed a thicker skin or, more likely, been advised that his case would be SLAPPed out of court, as he recently dismissed the action, albeit with a promise to refile at a later date. The Donald’s lawsuit was destined for failure, as it not only was based on a desire to punish protected speech, but also fails to state a claim for simple breach of contract.
Maher putatively offended Trump during an interview with Jay Leno on The Tonight Show in January when he aped Trump’s campaign antics and joked that he "would be willing to offer $5 million" for proof that Trump was not "the spawn of his mother having sex with an orangutan." Trump claimed that Maher’s on-air discussion with Leno, although to a national audience, constituted a binding offer that he promptly accepted. Maher, unsurprisingly, has not paid up.
Had Trump not withdrawn his claim, it likely would have been met with a special motion to strike pursuant to the California anti-SLAPP statute — for Strategic Lawsuit Against Public Participation. California Civil Code Section 425.16 subjects claims that "masquerade as ordinary lawsuits" to a special motion to strike when their primary purpose is to chill the exercise of free speech or petition rights. Specifically, the anti-SLAPP statute permits defendants to quickly and efficiently halt and potentially dispose of lawsuits against those exercising their right to free petition or speech. Trump’s late breach-of-contract case is a classic example.
This two-step process first requires the defendant to make a threshold showing that the challenged cause of action arises from protected activity. Statements made in a public forum in connection with an issue of public interest are categorically protected. Here, Maher’s statements were made on The Tonight Show during his interview by Leno. This is the quintessential public forum.
And there can be no doubt that these discussions were in connection with an issue of public interest. Trump made quite a name for himself both before and during the "birther" ­controversy of the 2012 presidential campaign. Maher’s satirical jest was a comment on the fevered frenzy with which Trump advanced the birther cause, and himself, through a public media campaign.
Were Maher able to demonstrate that his conduct fell within the purview of protected activity, which would have been extremely likely, the burden would have shifted to Trump to establish that he was likely to prevail on his claim. Specifically, Trump would have to "demonstrate the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Trump’s claim could not have met this burden. Not only would he likely have failed in establishing that the on-air joke constituted a valid offer, but also his breach-of-contract claim would have independently failed as a matter of law. And had the case proceeded and Maher succeeded on an anti-SLAPP motion, he would have been entitled to statutorily mandated attorney fees.
But what if it wasn’t a joke? What if Maher’s smirking, late-night-talk-show offer to donate millions to charity if Trump provided proof that he was not spawned by Mary Anne MacLeod Trump and an orange orangutan constituted a legally binding offer? Did Trump’s submission of a short-form birth certificate listing Fred Trump as his father constitute effective performance, obligating Maher to make good on his promised charitable donation?
The question becomes one of contract construction and performance. In the context of Maher’s unilateral contract offer, what performance was requested and did Trump satisfy the condition?
A fundamental tenet of contract interpretation is that when the language of a contract is clear, explicit and not absurd, it will be followed. Consider, then, the exact language used by Maher in his Tonight Show offer: "[S]uppose that perhaps Donald Trump had been the spawn of his mother having sex with an orangutan.…Unless he comes up with proof, I’m willing to offer $5 million to Donald Trump that he can donate to a charity of his choice."
Setting aside the fact that Maher’s orangutan-as-progenitor "contract" is patently absurd, one must determine the intended meaning of Maher’s requested "proof."
The law is, first of all, concerned with pinpointing the "ordinary and popular" meaning of a word. In so doing, a court will not hesitate to consult a dictionary for an accepted definition. Here, the Merriam-Webster online dictionary defines "proof" as "the cogency of evidence that compels acceptance by the mind of a truth or a fact." The dictionary definition of "proof" is consistent with the definition applied by courts: "The establishment of evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court."
Of course, the nature and extent of evidence sufficient to "compel acceptance" or establish "a requisite degree of belief" will vary from person to person, context to context. The meaning of "proof," as with any word, is not static. As Oliver Wendell Holmes wrote: "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."
Thus, the "ordinary and popular" meaning of a word, such as "proof," does not settle the issue when the "totality of circumstances" may provide additional color to the intended meaning of the word, or even point to an alternative meaning. Beyond assessing words themselves, courts will look to extrinsic evidence of the context and surrounding circumstances: the subject matter of the contract, the parties’ prior or subsequent conduct and prior statements by a party.
What does the totality of circumstances tell us about the intended meaning of Maher’s request for "proof"? Here, the context of Maher’s offer is quite clear, and instructive. Beginning in early 2011, purportedly in the context of a potential run for the Republican presidential nomination, Trump launched a public media campaign trumpeting various conspiracy theories questioning the legitimacy of President Obama’s claimed U.S. citizenship. Even after all but the most dedicated doubters of the president’s citizenship had packed up and gone home, Trump continued to hammer away at the president’s so-called mysterious past, calling him "the least transparent president in the history of this country." Significant for the purposes of Maher’s contract offer, in October 2012 Trump tweeted a video offer to the president: "If Barack Obama opens up and gives his college records and applications, and passport application and records, I will give to a charity of his choice, a check immediately for $5 million."
Maher’s public request for "proof" of Trump’s progeny in exchange for $5 million to charity is appropriately considered in the context of Trump’s public demands for documentation of Obama’s birth and past. Indeed, it is a twin of Trump’s $5 million offer.
Does this very public context of Maher’s offer shed additional light on the intended meaning of the requested "proof"? Without question, it does. In fact, in the broader context of Trump’s public campaign questioning the president’s citizenship, Trump’s short-form birth certificate cannot possibly constitute "proof" sufficient to obligate Maher to make good on his $5 million-to-charity pledge. Trump initiated his media campaign against the president by arguing that Obama’s short-form birth certificate, released in June 2008, constituted insufficient proof of his citizenship. Indeed, even after Obama released his long-form birth certificate, as repeatedly called for by Trump and his birther brethren, Trump questioned its authenticity.
Thus, it is clear that Maher’s contractual offer — and the intended meaning of its material terms — must be considered in the broader context of Trump’s public campaign questioning the president’s citizenship. Within that context, a short-form birth certificate constitutes "proof" of nothing. Accordingly, when held to his own standard, Trump has not performed under the contract.
The Donald made a very wise choice in deciding to drop his specious lawsuit voluntarily before the court told him, "You’re fired!"
Alex Weingarten is managing partner of Weingarten Brown, an entertainment and litigation firm in Los Angeles. Logan Elliott and Varty Defterderian are associates.