(Cross-posted at Trump Litigation Seminar and The Savory Tort.) In the fall semester, I had the privilege of exploring Trump litigation in depth with a team of law students in my Trump Litigation Seminar. These students are to be commended for plowing through more than 27,000 pages of court records, which are compiled and publicly available at our course blogsite, a project of The Savory Tort. In addition to our case reviews and discussions, students completed skills exercises in discovery, pleading, public relations, negotiation, and statutory interpretation, and rounded out the semester with research and writing. From the final papers, with author permission, here are selected abstracts.
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| Screenshot of PAC ad, via WNYC |
Jessi Dusenberry, Anti-SLAPP Law and Donald J. Trump for President, Inc. v. Northland Television, LLC. President Donald Trump filed a lawsuit against a small news organization in Wisconsin for defamation. The news organization, WJFW-TV, ran an advertisement that showed President Trump calling COVID-19 a “hoax,” as a graph tracking the rate of infections showed an upward track on the screen. Many news stations ran the same ad, but the Trump campaign chose to sue only WJFW-TV, which is owned by a small company that has only two other local TV stations. The political organization that produced the ad later joined the case as a defendant. The lawsuit was initially filed in Circuit Court, but later was removed to federal court. The lawsuit against WJFW-TV follows President Trump’s legal strategy of filing frivolous lawsuits to force the defendant to spend money in legal fees to get the case dismissed.
Unlike many other states, Wisconsin doesn’t have an anti-SLAPP law to prevent the use of the courts to intimidate people who are exercising their First Amendment rights. This paper provides general background on strategic lawsuits against public participation (SLAPPs) and the need for anti-SLAPP legislation, as well as the jurisdictional differences in drafting anti-SLAPP legislation. The paper goes into further detail on California’s anti-SLAPP legislation, beginning with the types of speech covered by the statute. The paper also analyzes significant judicial interpretations of the anti-SLAPP legislation in California. Finally, the paper explores the applicability of California’s anti-SLAPP protections to media defendants.
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| From Pixabay by Gerd Altmann |
Richard Grace, The Truth, the Whole Truth, and Everything but the Truth: Tort Reform and Social Media. The tort of defamation has been changed irreconcilably by the advent of social media, which have provided famous or notorious plaintiffs additional means to combat and remedy alleged damage to their reputations, regardless of the merits, leaving plaintiffs of more ordinary means no alternative but to rely on a system that is heavily defendant-favored and cost-prohibitive. In the “Twitter Age,” a period of revolutionary growth in connectivity and ability to spread information globally via social media, the ultimate affirmative defense to defamation, truth, seems almost to have become subjective, with division and polarization increasing at an alarming rate. Reasoned conclusions have been replaced by echo chambers. Whether it is “alternative facts,” or the notion that being “morally right” is more important than being “precisely, factually, and semantically correct,” the rapid growth in ability to editorialize and disseminate "truth" has wider implications for the “search for the truth” of modern litigation.
This paper first aims to discuss several theories of reform to the tort of defamation. The paper explores the actions of a serial defamation litigant, Donald Trump, specifically in the matters of Trump v. O’Brien and Miss Universe L.P. v. Monnin, the latter involving an entity owned by Trump, which were selected to demonstrate the ability of a defamation plaintiff to leverage the public sphere as an extra-judicial remedy. These cases were chosen to represent pre- and post-Twitter outcomes. O’Brien was decided prior to Twitter becoming a social media mainstay, whereas Miss Universe was more recent. Finally, the paper considers the external issues this gap in tort remedy for reputational damage has caused, particularly with regard to § 230 of the Communications Decency Act, which has provided social media companies, service providers for purposes of the act, with statutory immunity from tort actions for defamation. Ultimately, the jurisprudence of defamation law has enabled a two-tiered system of remedies: for those who must bear the cost and burden of litigation, and for those who can litigate the matter outside of the courtroom, in the court of public opinion.
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| Pa. electoral map from 2012 (CC BY-SA 3.0) |
Alyssa McCartney, The President Who Cries Voter Fraud: A Recurring Theme of Baseless Allegations. In 2019, Pennsylvania enacted its first update to the Election Code in nearly eighty years. On a bipartisan vote, the General Assembly passed a measure to allow “no reason” mail-in ballots. Act 77 allows any registered voter to request a ballot by mail, fill it out in the time framed outlined, and send it back to be processed. In the wake of a global pandemic that left Americans unable to leave their homes, this necessary update would cause quite the controversy in months to come. Explaining a new process comes with challenges, but tack on a President purposely fanning the flames of doubt, mail-in ballots have been tough to sell. The primary election used the updated process for the first time on June 2, 2020. Receiving nothing but praises and positive feedback, the measures enacted seemed to keep tensions at ease. That is, until the sitting President’s re-election campaign filed suit against Pennsylvania Secretary of State Kathy Boockvar and the Commonwealth’s sixty-seven counties. As President Donald J. Trump continued to allege baseless voter fraud accusations, the American people grew more restless in a year that’s already full of uncertainty. As a key swing state in presidential elections, Pennsylvania took center stage in Trump’s war on the election “rigged by Democrats.”
This article aims to address Trump’s relentless allegations of voter fraud—something that is not new for him. By analyzing Pennsylvania and offering an insight into Centre County election protocols, this article will squash the baseless accusations to show the election results are fair, free, and not riddled with fraud. Although President Trump refuses to concede in hopes of the United States Supreme Court intervening, he lacks any standing and cannot offer substantial evidence to support his claims. In short, these frivolous lawsuits are an attempt to undermine our democratic process by a man who has no shame spinning the narrative to suit his needs.
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| From Flickr by Gage Skidmore (CC BY-SA 2.0) |
Natalie Newsom, Make America Great Again. In 2015, Donald Trump announced that he was running for President of the United States in a controversial statement outside his towering building in New York City. What ensued in the months following was a campaign that shattered presidential norms with Trump having a scattered history of sexual misconduct allegations, zero experience in elected office, and a tendency to make offensive and derogatory comments. These comments caused Rafael Oliveras López de Victoria to file a lawsuit on September 24, 2015, to ban Donald Trump from becoming President. Oliveras López argued, albeit unsuccessfully, that there is a particular caliber of moral solvency expected of U.S. Presidents, and that the court should intervene in situations in which a presidential candidate fails to meet that criterion.
The most interest facet of the Oliveras López lawsuit is what it reveals about American politics and morality. As it stands now, making offensive comments aimed at protected classes in the United States will not stop you from becoming President, the most highly regarded public-servant position in our nation. That fact seems to run afoul of another phenomenon that exists in the United States today, in which people may be fired from their government jobs for social media posts featuring alcohol or expletives. This leaves the question of why a double-standard exists. This paper aims to address the problem of that gap between the law and morality and discusses what the case filed by Mr. Oliveras López teaches us about restoring faith in American decency.
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| E. Jean Carroll in 2006 by Julieannesmo (CC BY-SA 3.0) |
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| Snapshot of Trump deposition in CZ-National |
Spencer K. Schneider, Paying for Privacy. As public opinion of the courts diminishes, it is important to consider the role that public access to the courts, or lack thereof, plays in this public opinion. In the United States, courts have a long history of public access to both proceedings and documents, much of which is grounded in the First Amendment. However, this access is not absolute, and the wealthy and powerful often seek to keep court documents under seal and out of the public’s view. One of these wealthy and power individuals is Donald Trump, a frequent litigator to say the least. This paper analyzes court decisions in Trump Old Post Office LLC v. CZ-National and Low v. Trump University, respectively, to make public and seal the video depositions of Donald Trump taken during each case’s discovery, and the effect that allowing wealthy parties to seal court documents can have on the public perception of the courts.
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| José Andrés on Flickr by Adam Fagen (CC BY-NC-SA 2.0) |
Ricardo J. Serrano Rodriguez, Trump Old Post Office LLC v. Topo Atrio LLC and the Court of Public Opinion. This paper attempts an exploratory study of the plausibility of public opinion influence in the case of Topo Atrio through media outlets such as newspapers, television, radio, and social media platforms. The ways that public opinion is formed have changed throughout our history. Since the times of the public square, public opinion influences the way that individuals conduct themselves in society. This influence changes the dynamics of social interaction in a deep manner and polarizes the judgment of the public. The internet and social media have expanded the reach of the public sphere to a point of near immediate dissemination of information. Now, newspapers are not only physical, as the name suggest, but digital also, which multiplies the publisher’s reach. Donald Trump is a public figure who also has made a brand out of his name and relied on this brand in his quest for political approval. In the case of Topo Atrio, ... José Andrés and Donald Trump, through their corporations, entered into an agreement in which Andrés would run a restaurant in Trump’s Old Post Office Hotel. The controversial comments about immigration made by Donald Trump when he announced his candidacy created a bustle of publicity that followed him to the end of his presidential term. But could it really influence the court of law?
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| Pixabay by Christian Dorn |
Matthew R. Stevens, The Art of the SLAPP. This paper dives into two cases, Makaeff v. Trump University and Clifford v. Trump,
and dissects the anti-SLAPP issues and motions made in the cases. More
specifically, the paper views the anti-SLAPP issues in these cases
through the broader scope of anti-SLAPP legislation’s underlying policy
goals. While extremely important and inextricably connected to the legal
results of each case, the application of substantive law is not the
primary focus of this paper. There is a plethora of variables that
distinguish the two cases, but the key point of divergence on which this
paper focuses is Trump being a defamation plaintiff in one case, and a
defamation defendant in the other. It is also important to narrow the
scope of SLAPP suits themselves. SLAPP suits can apply to far more than
just free speech, but this paper focuses the scope of SLAPP suits
through the lens of defamation claims. The paper’s ultimate goal is to
use these two cases as examples to see whether anti-SLAPP legislation is
operating as intended within the context of the greater policy goals of
the legislation.
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| O'Brien's book (Amazon) |
This paper gives a basic overview of the hurdles faced by public figures in filing a defamation case. It examines and explains journalistic privileges in reporting on public figures and how these privileges were applied by the trial court. It examines various statutes and case law binding in New Jersey and New York at the time of the suit. This paper shows that this case was wrongly decided from the beginning and that it never should have moved into pretrial discovery. The trial court failed properly to apply the precedents of New Jersey or New York, and, as a result of this failing, a reporter was subjected to an endless stream of interrogatories, discovery, and legal harassment by a wealthy public figure. Indeed, this story is the embodiment of the motivations for press shield laws, and the importance of these laws in a democratic society.
