After the Access Hollywood recording of then-private-citizen Donald Trump bragging about sexually assaulting women became public in October 2016, Trump denied that he had ever engaged in the behavior about which he had boasted. That denial prompted various women to come forward to say that Trump had in fact sexually assaulted them or otherwise acted toward them in the manner described in the Access Hollywood recording. Trump repeatedly and categorically denied all of the allegations, characterizing the women’s accounts as “100% fabrications” and “totally false.” Moreover, Trump did not say that the women were merely mistaken in their recollection. He was quite clear in characterizing the allegations this way: “Every woman lied when they came forward to hurt my campaign, total fabrication.”
In January, one of the women who had challenged Trump’s dismissal of the Access Hollywood boasts as mere “locker room talk” sued him for defamation. Summer Zervos, a former contestant on The Apprentice, filed her complaint just days before Trump’s inauguration as president. In it, Zervos alleged that Trump had sexually harassed her (by, among other things, kissing her on the lips twice without her consent) at a private meeting in New York in December 2007 and then again in California (this time touching her breast without consent as well). Zervos did not sue Trump for assault (presumably because the statute of limitations had run) but for defamation. She claimed that Trump’s repeated statements that Zervos lied were themselves lies.
Last week, President Trump’s private lawyers filed their motion to dismiss the complaint. The memorandum in support of the motion makes a number of arguments, including the contention that the Supremacy Clause of the Constitution forbids state courts from adjudicating private lawsuits against the president, even for pre-presidential conduct. That contention chiefly relies on a footnote in the Supreme Court’s 1997 ruling in Clinton v. Jones: Although the justices unanimously ruled that private lawsuits alleging pre-presidential wrongdoing can proceed against a sitting president in federal court, a different rule might possibly apply in state court, the footnote said.
I anticipated this response in a Newsweek column that ran a few days after the Zervos lawsuit was filed. Professor Vikram Amar argued in an April column that developments since the Jones case could buttress Trump’s argument that a president deserves temporary immunity. And in May, I argued in another Newsweek column that, while there is a plausible basis for treating private lawsuits in state court differently from such lawsuits in federal court, the better argument points in the other direction. In a new essay being published simultaneously with this column, I offer yet another reason why the Trump lawyers’ argument for immunity in state court should be rejected: Congress, not the courts, is the correct body to which that argument should be addressed.
Here, however, I shall focus on a different contention made by the president’s lawyers in support of the motion to dismiss the Zervos complaint: Even if state courts can adjudicate some private lawsuits against a sitting president, they say, Trump’s statements were mere “hyperbole” and “fiery rhetoric,” which, in the context of a presidential campaign, do not amount to defamation under state law and cannot be made the basis for liability under the First Amendment.
Under traditional defamation law in every state, false statements of fact can result in liability, but statements of opinion cannot. Relying on that distinction, Trump’s lawyers contend that his Twitter posts and other statements about his accusers’ veracity were mere opinion.
The seemingly best precedent cited by the president’s dismissal brief is the January 2017 ruling in Jacobus v. Trump. There, a New York State trial court judge dismissed a different defamation complaint against Trump on the ground that a woman whom Trump allegedly defamed by trying to discredit her as a disappointed job-seeker was merely a party in a political tussle. The court stated that “Trump’s characterization of [the] plaintiff as having ‘begged’ for a job is reasonably viewed as a loose, figurative, and hyperbolic reference to plaintiff’s state of mind and is therefore, not susceptible of objective verification.” Likewise, Trump’s lawyers now say, his characterization of the women who contradicted his claim not to have engaged in the Access Hollywood-type behavior as liars was mere hyperbole, and thus protected opinion rather than actionable defamation.
Yet, on reflection, there is less to the Jacobus precedent than meets the eye. For one thing, it is not clear why Trump’s lawyers are relying on a New York case at all. Their own brief expressly contends that even though the case is pending in New York, California law governs because Zervos lives there. That contention is critical to another ground the Trump lawyers offer for dismissing the case—California’s so-called anti-SLAPP law. Yet if California law governs the dispute, New York cases have no binding force.
To be sure, the Jacobus case could be persuasive to the extent that it is well-reasoned and closely analogous. However, even assuming that the Jacobus decision is well-reasoned, it is not closely analogous. When Trump tweeted that Cheryl Jacobus “begged” for a job, he obviously did not mean that she literally held out a hand and requested employment the way a pauper might ask for alms. It is at least within the realm of hyperbole to characterize a meeting to discuss possible employment as “begging” by the applicant, even if the prospective employer proposed the meeting, as in the Jacobus case. But Trump’s categorical descriptions of Zervos and the other sexual misconduct accusers as lying cannot reasonably be deemed statements of opinion.
In their brief, the Trump lawyers do not cite the U.S. Supreme Court decision that bears most closely on the Zervos case. In its 2012 ruling in United States v. Alvarez, the high Court held that the First Amendment forbids the charging of a public officeholder with lying about his military service under a federal statute—the Stolen Valor Act—that imposes criminal penalties for such lying. Alvarez appears to give powerful support to Trump’s argument, because it makes clear that the First Amendment protects political lies.
That appearance is superficial, however. In multiple places, the Alvarez opinion distinguishes liability for defamation, which the Constitution allows—even when politics and politicians are involved—subject to certain constraints. Reading Alvarez in full, it becomes clear why Trump’s lawyers did not rely on the ruling. It harms rather than helps their argument.
Trump’s lawyers do rely on some lower court cases decided in the shadow of the First Amendment that, they say, take otherwise defamatory statements outside the category of defamation when they arise in a political context. They even cite a 2005 California intermediate appellate court case, Carver v. Bonds, which, they say, collects “cases where calling someone a liar was not defamatory given the context.” Yet that is a highly misleading characterization of Carver, which also collects cases where calling someone a liar was defamatory given the context.
What determines whether calling someone a liar is or is not defamatory under California law? According to the Carver court, generic characterizations of someone as “a liar” will not typically be defamatory, but where the accusation carries “a factual imputation of specific dishonest conduct capable of being proved false,” defamation liability is allowed. Because Trump’s statements about Zervos and his other accusers referred to alleged “specific dishonest conduct”—namely their accusations that Trump sexually harassed or groped them—they should fall into the actionable category.
The closest that the Trump lawyers come to citing a truly helpful California case is their reference to another California intermediate appellate court ruling, the 2001 decision in Rosenaur v. Scherer. There a candidate for office escaped defamation liability for calling the plaintiff a “thief,” even though such a statement would, if false, give rise to defamation liability in other contexts.
Yet there is a crucial distinction between the Rosenaur case and the Zervos suit against Trump. The defendant in Rosenaur called his opponent in the race for office a thief. The lesson of that case and others cited by the Trump lawyers is more like “if you run for office, you need a thick skin,” than that politicians can lie about private citizens with impunity.
But wait. Was Zervos really a private citizen? As the Supreme Court observed in the 1974 case of Gertz v. Robert Welch, Inc., people who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved” may be treated as “public figures” for purposes of defamation liability. And that is a fair description of what Zervos did, is it not?
Indeed it is. However, under the line of cases into which Gertz falls, public figures do not lose all protection against defamation. Rather, a plaintiff who is a public figure must prove not only that the damaging statement about her is false, but that the defendant made the statement with “actual malice.” And of course, Zervos alleges exactly that: Trump, her complaint says, deliberately lied in claiming that her account of their encounter was false.
Trump’s lawyers are correct that the First Amendment and state defamation law should be interpreted to give politicians some room to deny what they regard as false charges without fearing frivolous lawsuits. But the actual-malice test already provides that kind of protection. Trump’s lawyers are asking for something broader—essentially a license for a candidate to lie about anyone and anything so long as the controversy has some connection to politics. The Supreme Court could create such a blanket immunity by greatly expanding its First Amendment precedents. The California Supreme Court could redefine state defamation law to allow such a broad exception. However, unless and until either of those courts takes that dramatic step, a case like the one filed by Zervos should not be dismissed simply because Trump’s allegedly defamatory statements arose in a political context.