UPDATED! Defamation and The Donald: How To CYA When Standing Up To A World-Class Bully

Yesterday I was reading Jane Mayer’s recent New Yorker article about Tony Schwartz, a journalist and author who ghost-wrote Donald Trump’s famous 1987 memoir, The Art Of The Deal. Schwartz, a life-long liberal, took on the job despite his better judgment because he needed the money and discovered through the process what is probably the worst kept secret in America: that Trump is a thin-skinned, selfish liar who has no ability to focus and cares only about money and attention. Schwartz, who now regrets writing the book, states openly that: 

“I put lipstick on a pig. I feel a deep sense of remorse that I contributed to presenting Trump in a way that brought him wider attention and made him more appealing than he is. I genuinely believe that if Trump wins and gets the nuclear codes there is an excellent possibility it will lead to the end of civilization.”

Woof. Towards the end of the article, Mayer chronicles a call between Trump and Schwartz where Trump complains about Schwartz’s treatment of him.

Schwartz’s cell phone rang. “I hear you’re not voting for me,” Trump said. “I just talked to The New Yorker—which, by the way, is a failing magazine that no one reads—and I heard you were critical of me.”

“You’re running for President,” Schwartz said. “I disagree with a lot of what you’re saying.”

“That’s your right, but then you should have just remained silent. I just want to tell you that I think you’re very disloyal. Without me, you wouldn’t be where you are now. I had a lot of choice of who to have write the book, and I chose you, and I was very generous with you. I know that you gave a lot of speeches and lectures using ‘The Art of the Deal.’ I could have sued you, but I didn’t.”

“My business has nothing to do with ‘The Art of the Deal.’ ”

“That’s not what I’ve been told.”

“You’re running for President of the United States. The stakes here are high.”

“Yeah, they are,” he said. “Have a nice life.” Trump hung up.

I read the article holding my breath and waiting for the inevitable stinger: “Trump’s attorney’s have filed a $10 million defamation lawsuit against Schwartz.” It never came, though it doesn’t mean it won’t eventually. Trump has a habit of suing or threatening to sue when he feels like he’s been wronged publicly, so it’s reasonable to assume that threat may still come. 

I can see why Schwartz felt he had to say something, especially since Trump is poised to officially become the GOP nominee for President. He feels responsible for making Trump palatable at a national level and wants to atone for his sins. Sometimes you gotta do what you believe is the right thing, even if it means getting walloped for it. I’ve had clients who wanted to publicly shame those who wronged them because they couldn’t afford to seek remuneration through the court system. I always tells them the same thing:

WATCH WHAT YOU SAY.

There’s a difference between a dispassionate telling of the facts, and a heated accusation of wrongdoing. The more your remarks hew towards the latter, the more you veer into defamation territory, which robs you of the high road and puts you in danger of getting sued. That'd be a fine how-do-you-do, wouldn't it? To be the victim of copyright infringement or contract breach, but having to defend yourself against a defamation claim? Nevertheless, there are some who want to leverage the power of social media to slay their dragons, and as long as they know what they're getting themselves into, who am I to stop them? Here's what I tell those who can't be dissuaded.

  1. Stick with the facts;
  2. Don't extemporize or go off script;
  3. Provide as much context for your side as possible and avoid being soundbite-y;
  4. Avoid name-calling and other accusatory language;
  5. If you're going to use accusatory language, frame it as opinion, not fact (i.e. don't say "he's a liar." Say, "I feel like he lied to me.");
  6. Don't do it out of revenge. Do it for a greater public good;
  7. Back up and document your side as much as possible;
  8. Have balls of steel.

But even if you follow these rules like Schwartz (well, he did like 70% of the time) it doesn't mean you're judgment-proof. Schwartz is still wading into dangerous waters taking on Trump so publicly. Sure, Trump may do nothing. Despite his threats, Trump doesn’t sue for defamation that often. According to USA Today, out of Trump’s unprecedented 3500 legal actions, only fifteen deal with defamation. Even still, it costs virtually nothing for Trump to file a lawsuit against anyone else he feels wronged him, and if Schwartz had come to me, I would have stressed that even when you do things the right way, you can still end up victimized. Anyone can sue anyone for anything; there’s no bar to bringing a lawsuit except how much is in your bank account. Courts have procedure and they stick to it every time. Which means even for frivolous claims that are destined to be dismissed, you’re still spending months of time and thousands of dollars in legal fees just to defend yourself. 

Defamation isn’t defined as “a statement about me that I don’t like” and Trump knows that. So when he says:

I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money… So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post…writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected.

... he's openly admitting (as much as he's capable of it) that he's less concerned about your rights to free speech and the necessity of a free press, and is more interested in going after people who say unflattering things about him. He's a bully. And his weapon of choice is his unlimited checkbook. So let’s be thankful that defamation is really really really hard to prove. Really. In order to prove that someone has defamed you, you need to meet these elements.

  1. The statement must be false;
  2. The statement must be made about a person or entity without their authorization;
  3. The statement must be made to at least one other person;
  4. The statement must be made with some fault, usually negligence; and
  5. The statement must cause actual harm.

And meeting all of these requirements is hard, especially the last one. See, the statement can’t just be something that hurts your feelings. You have to show that you suffered some some actual injury, like the destruction of a business opportunity or the loss of a job. The harm can't be vague and undefined; it has to be concrete and measurable. Most statements against a person, even false ones, either don’t result in actual harm or don’t result in enough evidence to prove that actual harm took place.

Proving defamation is even harder if you’re a public figure. Statements made against private figures must be made negligently (i.e. the statement was made by accident or without much thought of its effects), but statements made against public figures like politicians and celebrities must be made with actual malice. This means that the person making the statement must either know the statement is false, or should have reasonably assumed it was, but made it anyway. Why the higher standard? Because unlike a private person, a public person, like Trump, knowingly puts themselves out there. There are very few cases where actual malice has been proven because uncovering the intent of a defamer is astonishingly difficult.

But if that figure has enough resources, it doesn’t really matter if what you say constitutes defamation. For Trump, defamation is merely the mechanism he would employ to get what he really wants: the destruction of anyone who gets in his way and the continued expansion of his image as a strong man. Sure, it may cost him a few hundred thousand bucks to file a losing defamation lawsuit against Schwartz and The New Yorker, but he can afford it. And even though Schwartz would likely win such a suit, he’d spend far more defending himself, proportionately, than Trump would.

Nowadays, your actual rights are subordinate to your financial ability to defend them. It’s always dangerous going up against someone bigger than you, and I’m not saying you shouldn’t do it, but you should know exactly what kind of ride you're in for. I can't imagine it would be a pleasant one.

Shortly after losing the 2012 Miss USA Pageant, Miss Pennsylvania, Sheena Monnin, went on a Facebook tirade against the pageant, claiming it was rigged. Then Trump sued her for defamation (she had signed a contract with the pageant that contained a non-disparagement clause), showing that her tirade had caused the pageant to lose a $5 million sponsorship deal with BP and that young women who Googled Miss USA would see Miss Monnin’s claims and not enter the competition. Trump won a $5 million judgment against her, which was later privately settled between the two parties. Trump, a man who has a blast crater where his soul should be, wasn’t magnanimous in victory. About Monnin, he gloated:

Going to arbitration was the appropriate action to take under the circumstances, and while I feel very badly for Sheena, she did the wrong thing. She was really nasty, and we had no choice. It is an expensive lesson for her.

While the facts of Monnin’s case aren’t an analog for others Trump has threatened, to Trump, it's all the same: Trump is good, you are bad. Whether Trump ultimately sues Tony Schwartz and The New Yorker is up in the air. He probably won’t be able to prove it, but that’s beside the point. The mere existence of such a suit - and the attendant press that would come with it - would be enough to bolster his image as a strong man. He won’t win, but no one has ever won more from losing than Donald Trump.

UPDATE! Schwartz did indeed receive a letter from the Trump organization threatening to sue him for defamation and requesting a substantial amount money from Schwartz for his work on The Art of the Deal, as well as a public apology and promise not to make anymore defamatory statements. For his part, Schwartz said that he would not retract his statements or apologize and would continue to speak out. Head over to The New Yorker to read the whole story, as well as the letter Schwartz got from the Trump organization and Schwartz's attorney's response letter.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA