In this election, the Lincoln Project has been arguably the most prolific anti-Trump organization in running scathing and often personal attacks on Trump, his family, and his associates. The ads have ranged from the genuinely funny to the shockingly vicious. Now however, the Project may have added openly defamatory. The Project has erected a pair of billboards in Times Square that the slam Jared Kushner and Ivanka Trump as callous and mocking figures in the fast of the rising death toll from Covid-19. The Project has received a letter of intent to sue from the family’s lawyer and, while these actions by public official or public figures are extremely difficult to maintain, the claim could have merit. I have updated the column below to add the statement from the Lincoln Project.
The ads, announced Thursday by the Lincoln Project, feature images side by side. In one, a smiling Ivanka gestures approvingly toward the coronavirus death tolls for New Yorkers and Americans. In the another, Kushner is shown next to body bags with a quote “(New Yorkers) are going to suffer and that’s their problem.”
Once again, these controversies must begin with a caveat on the difficult legal standard imposed on public officials and figures. (Both are technically public officials even though they are not paid an official salary. Yet, the standard for both categories is the same).
The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, they must show actual knowledge or reckless disregard of the alleged falsity. Obviously, truth remains a defense. Under Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases, the Supreme Court has held that public figure status applies when someone “thrust(s) himself into the vortex of (the) public issue (and) engage(s) the public’s attention in an attempt to influence its outcome.”
Truth is always a defense in defamation. In a related false lights claim, however, the photo or quote can be true but presented falsely. Under the Restatement of Torts, this tort is defined as:
652E. Publicity Placing Person in False Light
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Much of the underlying facts of the sources of the original photo and quote are known. There is a question about the reliability of the Kushner quote that could result in some interesting discovery demands.
Ivanka Trump’s Claim
Ivanka’s claim would be the most challenging to maintain in court. The image is taken from a selfie she tweeted in July in which she gestured toward a can of Goya black beans to show support for the company. However, the use of the image could be defended as political commentary and parody. Courts tend to avoid curtailing political speech, even when it is obnoxious or unfair.
Yet, the Supreme Court has shown that there are limits to opinion as a defense as in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). In that case, there was another inflammatory allegation stemming from a public meeting. An Ohio high school wrestling coach sued over an opinion column alleging that he had lied under oath at a public hearing, saying that it was tantamount to an allegation of perjury. The trial judge granted summary judgment on the ground that the assertion in the newspaper column was opinion. The Court however rejected the defense in the case in 7-2 opinion written by Chief Justice William Rehnquist. The Court noted that “expressions of ‘opinion’ may often imply an assertion of objective fact” and may inflict “as much damage to reputation” as factual claims. Moreover, some opinions are based on assertions that are “sufficiently factual to be susceptible of being proved true or false.”
Trump family lawyer Marc Kasowitz objected in the letter that “Ms. Trump never made any such gesture.” That is probably not enough in this circumstance. It is common for public officials to have their pictures used in different contexts. Moreover, most people would not believe that Ivanka mocks the deaths of thousands of people and that this is political parody or speech. The context of speech is also key as shown in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing piece, including what Ollman stated were clear misrepresentations. The court acknowledges that “the most troublesome statement in the column . . . (is) an anonymous political science professor is quoted as saying: ‘Ollman has no status within the profession but is a pure and simple activist.’” Ollman sued but Judge Kenneth Starr wrote for the D.C. Circuit in finding no basis for defamation. This passage would seem relevant for secondary posters and activists using the article to criticize the family:
The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.
A reader of this particular Evans and Novak column would also have been influenced by the column’s express purpose. The columnists laid squarely before the reader their interest in ending what they deemed a “frivolous” debate among politicians over whether Mr. Ollman’s political beliefs should bar him from becoming head of the Department of Government and Politics at the University of Maryland. Instead, the authors plainly intimated in the column’s lead paragraph that they wanted to spark a more appropriate debate within academia over whether Mr. Ollman’s purpose in teaching was to indoctrinate his students. Later in the column, they openly questioned the measure or method of Professor Ollman’s scholarship. Evans and Novak made it clear that they were not purporting to set forth definitive conclusions, but instead meant to ventilate what in their view constituted the central questions raised by Mr. Ollman’s prospective appointment.
Here the information was conveyed on a mocking and clearly political billboard. A court would most likely be skeptical of a defamation claim in such a circumstance.
Jared Kushner’s Claim
The claim by Kushner is stronger. Kasowitz objected that “Of course, Mr. Kushner never made any such statement.” The line does appear both edited and misleading. TheSept. 17 Vanity Fair article
Putting aside the source, the quote itself is misrepresented. The article was on a meeting of business figures with Kushner on PPE orders for the pandemic. Kushner is quoted as saying “Cuomo didn’t pound the phones hard enough to get PPE for his state…. His people are going to suffer and that’s their problem.” That is an entirely different meaning. Unlike the Ivanka billboard, the Kushner billboard could be taken as a factual statement about dead New Yorkers. It is designed to trigger anger and resentment against Kushner based on a statement that is falsely presented. As such, it could be a case for defamation and false light.
The best argument for the Lincoln Project is that the quote still reflects a callous disregard for New Yorkers. While Kushner can reasonably argue that he was referring to the political problem for Cuomo and Democrats, the Project could argue that this is within the very broad range given protected political statements since it still shows, if true, that Kushner was dismissive on the issue. If the jury or the court finds that a plausible interpretation, it would likely reject the claim.
The immediate concern for The Lincoln Project should be that the Kushner claim could make it beyond an early motion to dismiss and the project could find its internal discussions subject to depositions. It would also mean that the project would be caught in lingering litigation beyond 2020.
Kushner still would face a considerable headwind from these cases but the claim is neither frivolous nor easily dismissible.
Update: The Project has now responded
The Lincoln Project’s responded defiantly:
“The level of indignant outrage Jared Kushner, and Ivanka Trump have shown towards the Lincoln Project for exposing their indifference for the more than 223,000 people who have lost their lives due to the reckless mismanagement of Covid-19 is comical,” a statement said.
“While we truly enjoy living rent-free in their heads, their empty threats will not be taken any more seriously than we take Ivanka and Jared. It is unsurprising that an administration that has never had any regard or understanding of our constitution would try to trample on our first amendment rights. But we fully intend on making this civics lesson as painful as possible.
“Jared and Ivanka have always been entitled, out-of-touch bullies, who have never given the slightest indication they have any regard for the American people. We plan on showing them the same level of respect. The billboards will stay up. We consider it important that in Times Square, the crossroads of the world, people are continuously reminded of the cruelty or density and staggering lack of empathy the Trumps and the Kushners have displayed towards the American people.”
In other words, game on.