While President Trump hasn’t made good on his fantastical threat to “open up our libel laws,” several disgruntled, petty politicians from across the political spectrum have taken up the torch.
Yesterday, Rep. Tulsi Gabbard joined the fray with a $50 million lawsuit against Hillary Clinton, who in October 2019 said about the Hawaii Democrat and 2020 presidential candidate: “She’s the favorite of the Russians. They have a bunch of sites and bots and other ways of supporting her so far … Yeah, she’s a Russian asset.”
As a First Amendment attorney, I know that Gabbard’s lawsuit is not the craziest defamation case ever brought. It will nonetheless face substantial obstacles as it winds its way through the courts. The entire affair is political and doesn’t belong in the courts anyway.
First, Gabbard will have to prove that Clinton made a false statement of fact, an essential element of any defamation claim. Clinton may successfully argue that the term “Russian asset” is mere rhetorical hyperbole, similar to allegations of terrorism or corruption, which are afforded First Amendment protection due to “the reality that exaggeration and non-literal commentary have become an integral part of social discourse,” as one court explained.
Clinton might also successfully argue that, contrary to Gabbard’s complaint, she did not allege that Gabbard was working under the direction of, or in coordination with, the Russians. Her statement could just as easily be interpreted to mean that Gabbard is simply useful to the Russians. The theory being that if Gabbard divides the Democratic vote, there is a greater likelihood that Trump is reelected. An “asset” is not necessarily a witting accomplice, even if that’s probably the implication.
To be clear, Clinton’s claims about Gabbard are completely without evidence. They are unsupported and almost certainly false. But the highest hurdle Gabbard will have to clear is proving “actual malice”: that Clinton made her comment either knowing it was false or having entertained serious doubts as to its veracity.
This high legal standard applied to defamation cases brought by public officials reflects, as the Supreme Court noted in New York Times v. Sullivan, our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Actual malice is a high bar, and it is unlikely that the claim Clinton must have known her statement was false simply because of the government posts she previously held will suffice. A court may well decide that the case is close enough to go to a jury — and with a jury, anything can happen. But I suspect that Gabbard likely doesn’t expect to win.
The point in such political lawsuits is often not to win, but rather to draw publicity — the damages claims in these cases are often so absurd as to beggar belief — and to burden a vocal critic with a cumbersome and expensive lawsuit.
Rep. Devin Nunes is no stranger to these tactics, either. The California Republican has filed a series of lawsuits seeking a whopping $760 million from Twitter and a variety of journalists, news outlets, and, bizarrely, a parody cow social media account, for expression that is in large part clearly protected by the First Amendment.
In a manner that can only be described as brazen and transparent, Nunes has filed these lawsuits in jurisdictions that do not have strong laws providing for prompt dismissal of meritless defamation suits brought to harass defendants for simply exercising their First Amendment rights (known as anti-SLAPP laws). The message is quite clear: If you say something I don’t like, I will make sure that even if you win the lawsuit, it will come at enormous expense to you.
This amounts to little more than an intimidation tactic.
Gabbard and Nunes would have you believe that their lawsuits are aimed at protecting the functioning of our democracy. In reality, it’s quite the opposite.
Chilling debate and curtailing the public’s ability to freely discuss issues pertaining to elected officials and candidates without fear of a ruinous lawsuit is a far worse fate than the risk of false information occasionally gaining traction. The true threat to the functioning of our democracy is the notion that the boundaries of acceptable political discourse should be determined not by the public but rather by a continuous stream of headline-seeking defamation lawsuits.
In their lawsuits, Gabbard and Nunes complain that their fitness to hold office has been unfairly impugned. But it is better to err on the side of free, unfettered debate and be thought by some unfit for office than to file petty, vexatious defamation lawsuits and remove all doubt.
Ari Cohn (@AriCohn) is an attorney specializing in First Amendment law and a contributor to the Washington Examiner’s Beltway Confidential blog.
