You probably think that there’s no such thing as alternative facts. Sad! So wrong!
Earlier this year, a New York Supreme Court judge ruled that some of Donald Trump’s seemingly factual tweets may actually be considered hyperbolic opinion and thus protected free speech for defamation purposes. Earlier this month, Donald Trump tried this alternative facts–style defense in order to try to dismiss another defamation lawsuit. The plaintiff in that case is one of several women who has accused Trump of sexual misconduct. He used Twitter to suggest that the women were liars and she filed the defamation claim in response. Now the president argues that his tweets were mere hyperbole, aka alternative facts.
This time around, though, the Twitter war may be a tougher win for Trump.
First, a bit of background about defamation. A successful defamation action springs from a false statement that harms a person’s reputation. Defamatory statements online and otherwise are those that lower a person’s reputation within a community by exposing him to “public contempt, hatred, ridicule, aversion or disgrace” and similar responses. These false statements of fact make readers think less of a person to the point of reputation ruin.
But you can only prove defamation if you prove that readers believe the truthfulness of what they read. Sometimes, the hurried and hyperbolic nature of certain Twitter and Facebook posts make it so that readers don’t actually take some of these factual statements seriously. Context can make what might otherwise appear as a factual statement into something that basically nobody believes.
That alternative facts argument is the one that President Trump used earlier this month to try to persuade the same court to dismiss the tweet-based defamation complaint against him. Summer Zervos, the woman who filed the lawsuit and a former contestant on The Apprentice, maintains in her complaint that Trump touched her inappropriately. She says that she was motivated to come forward at a press conference to complain about his behavior only after his campaign-trail denials of similar misconduct with other women.
Then, she says, the defamation came: The complaint alleges that candidate Trump began tweeting in response that there was never inappropriate contact between them and that such allegations were, like others’ claims, were false:
One Trump tweet, published in full color in the complaint, features a picture of Zervos with her attorney and retweets the suggestion that her claims were “yet another hoax,” adding the word “Terrible.” Zervos maintains that those tweets and similar statements defamed her.
“Mr. Trump knew that his false, disparaging statements would be heard and read by people around the world,” the complaint reads; they were “plainly defamatory” and caused her reputational harm.
You might think that such tweets, if false, would in fact offer a basis for a defamation claim. But Trump is arguing that these tweets about Zervos lying and perpetrating a hoax were actually just hyperbole spread on Twitter as part of the sort of shouting match that many have come to expect in politics and thus not believable old facts like the rest of us think of them.
Again, the legal argument goes that nobody believes what they read in social media anymore. Or, more poetically put, “truth itself has been lost in the cacophony of online and Twitter verbiage to such a degree that it seems to roll off the national consciousness like water off a duck’s back.”
That quote came from the aforementioned New York Supreme Court judge’s opinion filed just 10 days before President Trump’s inauguration—an opinion in a defamation lawsuit that also sprang from Trump tweets. Some of those tweets described the political commentator–plaintiff who’d criticized Trump on television as going “hostile” after Trump “turned her down twice” for a job with his campaign despite her having “begged” for such employment. “Major loser,” the tweets read, with “zero credibility!” “A real dummy!”
Trump’s attorneys filed a motion to dismiss that defamation claim. Given the judge’s view about truth being lost in the cacophony like water off a duck’s back, the political commentator lost. Read in the context of Twitter and considering the statements together along with first amendment interests in expression, the judge found that “a reasonable reader would recognize the defendant’s statements as opinion, even if some of the statements, viewed in isolation, could be found to convey facts.” Voila: Alternative facts. Or at least apparent statements of fact made less believable because they were sent out, according to the judge, as part of a “freewheeling, anything-goes writing style” online by someone whose tweets “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.”
Trump’s tone, the judge explained, was a signal to readers that it was all a “petty quarrel” and “heated interplay” similar to a “schoolyard scrabble” between two people in the arena of “heated political debate.” Plus, this was all done through social media, a “repository of a wide range of casual, emotive, and imprecise speech” and thus less credible than information that appears elsewhere. In other words, the more hyperbolic Trump’s word salad—with heavy usage of exclamation points and capitalization apparently adding to the “surrounding circumstances” that lessen credibility—the less likely the reader would be to believe any of it. That includes statements of apparent fact, which the man who would become president of the United States was apparently no longer accountable for.
Enabling? Could be!!!
Which brings us back to Summer Zervos and her lawsuit against now-President Trump. On July 7, Trump’s attorneys responded with a motion to dismiss that aligned in part with the pre-inauguration court decision. They argued that Trump’s tweets labeling Zervos’ claims a “hoax” and lies were in fact “fiery” “non-actionable rhetoric” made “during a heated political campaign to convince the public to vote for Mr. Trump” and, therefore, “have no defamatory meaning” in that context.
“Mr. Trump,” the motion reads, “had been engaged in a longstanding public debate with the media and his opponents on a host of matters, including his qualifications to run for office.” Therefore, the attorneys argue, the tweets “are nothing more than heated campaign rhetoric designed to persuade the public audience that Mr. Trump should be elected president irrespective of what the media and his opponents had claimed over his 18-month campaign.”
Moreover, they suggest, the earlier tweet-based trial court decision that Trump won on a motion to dismiss should be “instructive” to the court. It helps prove that the totality of the circumstances online should “determine whether the statements in question are provably false factual assertions or non-actionable statements.”
Given that argument, the question at least in part is this: Can someone who tweets seemingly fact-based statements suggesting that another has lied as part of a hoax be protected because people might not believe what they read from that person on Twitter? And are these statements even more unbelievable on their face when the tweets are in partial caps, feature exclamation points, and are sent by a politician at war with the media?
Here, we should all hope, protection for such tweets does not automatically exist simply because they are on Twitter and involve politics in some sense. There are other issues in the lawsuit that could get it tossed, including whether the statement that one is lying can be defamatory in itself, but tweets that suggest a woman is lying as part of some grand scheme at least teeter on the brink of actual believable truth. The fact that Trump reiterated these claims on the campaign trail helps to indicate he intended to convince his audience that they were truthful. The particular punctuation may be the same as that earlier defamation case that was dismissed, but this case does not involve a political commentator and strategist on the receiving end—it’s a woman who has accused the president of sexual misbehavior.
For most of us, defamatory speech isn’t instantly transformed into hyperbole just because it’s on a Twitter platform. One can suggest some pretty horrible things about another in 140 characters, and other courts have found valid defamation claims based on tweets. There’s something decidedly troubling about the broader argument that Twitter speech can’t be defamatory simply because it’s on Twitter, even in the context of a campaign and especially when the plaintiff at issue is not an opposing candidate or even a political commentator.
Surprisingly, that sort of pro-plaintiff argument can be found in language in the earlier pro-Trump Twitter ruling. There, the judge initially noted that candidate Trump had turned the political world on its head given his “strategic and almost exclusive use of Twitter to advance his views” and suggested that that difference could maybe, just maybe make his Twitter musings more believable as statements of truth, shifting them away from arguably clearer political hyperbole. “These circumstances,” the court wrote, “raise some concern that some may avoid liability by conveying positions in small Twitter parcels, as opposed to by doing so in a more formal and presumably actionable manner.”
Ultimately, liability was avoided in that particular instance given what that judge called “the familiar back-and-forth between a political commentator and the subject of her criticism.” But such hesitation on the judge’s part more generally supports the argument that Twitter should not be a blanket defense for all defamation claims involving apparent statements of fact on Trump’s Twitter account. Because Twitter seems to be the platform of choice for this particular politician, it’s pretty clear that his tweets stating facts should be viewed not as hyperbole but as potentially believable truth after all.
Perhaps the best evidence of this comes from the White House itself. Tweets “are not policy,” White House aide Sebastian Gorka suggested in June in an assessment that sounded much like the earlier judicial opinion. “It’s social media. You know the difference, right?”
Sean Spicer quickly corrected Gorka: “The president is the president of the United States so they’re considered official statements by the president of the United States.” And it was the Spicer quote that the 9th U.S. Circuit Court of Appeals used in its June opinion on the travel ban, writing that Spicer’s words demonstrated how Trump’s tweets were intended to be seen as fact and truthful.
Perhaps this is all best conveyed in language the president would best understand: alternative facts? A total scam! Believe me.