Op-Ed: Legally speaking, can you be defamed by a blowhard? Trump wants to know

Around the proverbial water cooler, 1st Amendment lawyers enjoy a classic thought exercise: Can a plaintiff be libel-proof? Put another way, can your reputation be so terrible that as a matter of law, you can’t be defamed? The past year has popularized the flip side of that question: Can someone be defamation-lawsuit-proof? Can you be such a notorious bloviator that nothing you say can be taken as fact, and therefore nothing you say can be defamatory? We may soon find out.

Three days before his inauguration, President Trump — who memorably promised to “open up” libel laws to make it easier to sue the media — was sued for defamation. The plaintiff is Summer Zervos, who was a candidate on the fifth season of “The Apprentice.”

In October, in the wake of Trump’s infamous recording in which he bragged about grabbing women, Zervos publicly alleged that in 2007, Trump sexually assaulted her in a bungalow at the Beverly Hills Hotel. Trump denied it and called Zervos a liar repeatedly and floridly. Now, Zervos is claiming Trump harmed her reputation by denying the incident and branding her a liar. Zervos’ approach isn’t new — it’s part of a trend of plaintiffs accusing public figures of misconduct that falls outside the statute of limitations and then suing them or their underlings for their response. Some of Bill Cosby’s accusers have tried a similar tactic.

A word of caution to those fortunate enough not to have attended law school: Despite what your angry relatives post on Facebook, defamation doesn’t mean “saying something bad about somebody.” Defamation requires a false statement of provable fact.

By definition, opinion, insult and hyperbole aren’t defamatory unless they can reasonably be understood to be stating or implying a false statement of fact. Calling someone a jerk isn’t defamatory; it’s an unprovable opinion protected by the 1st Amendment. Falsely calling someone a convicted felon is almost certainly defamatory unless posted in a context that marks it as a joke. Calling someone a crook may or may not be defamatory, depending on the context. If you link to a news article and call the subject a crook, that’s clearly opinion. But if you worked for the subject of the article and announce you know he’s a crook, that might be defamatory, because it can be taken as implying false facts about the person’s behavior.

Zervos complains that Trump called her allegations false, made up, a smear, a lie and a hoax, and that he and his underlings suggested she was motivated by politics and money. Many of the statements Zervos complains of are clearly protected opinion. The speculation about her motivations, uttered in the context of a heated political dispute, is exactly the sort of speech the 1st Amendment protects.

But her complaint also identifies a core of provable fact: Trump didn’t merely say that Zervos exaggerated or mischaracterized an encounter, or that the evidence didn’t support her claim, or that she wasn’t credible. He claimed, based on his own knowledge, that she lied and that the assault didn’t happen. That’s potentially defamatory.

Trump, through his public persona, has forged a defense to defamation claims that’s already proved effective. The question of whether a statement is factual depends heavily on its context — both who made it and where it was made. Context is king in defamation law.

Last April, Cheryl Jacobus, a political strategist, sued Trump and his campaign for defamation for tweeting that she “begged” him for a job and turned hostile when rebuffed. Early this month, a New York judge dismissed Jacobus’ lawsuit, finding that Trump’s comments couldn’t reasonably be interpreted as statements of provable fact, and therefore couldn’t be defamatory. The judge focused on Trump’s manner of communicating and how reasonable people understand it: “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.”

In other words, the judge found — in genteel fashion — that Trump is too much of a blowhard for his Twitter statements to be taken as factual for defamation purposes. That’s the difficult hurdle Zervos (not to mention America) will face. As journalist Salena Zito observed, Trump’s voters probably took him “seriously” but not “literally.” Trump made skillful use of that distinction, and his administration continues the tradition by offering what it terms “alternative facts” and emotive rhetoric.

However far Zervos’ defamation case proceeds, Trump’s famed bombast will be a formidable defense. More important, it may serve as an example. If Trump’s elbow-throwing rhetorical style is not only politically but also legally effective, public figures may adopt it and lawyers cite it to defend their clients. Our discourse will suffer as a result.

Ken White is a 1st Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los Angeles.

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