In one such case, initiated in New Jersey in 2006, Trump sued Time Warner Books and writer Timothy O’Brien, then a reporter with The New York Times and now the editor of Bloomberg View, alleging that he had been libeled in a biography O’Brien had written, “Trump Nation: The Art of Being The Donald.” The purported defamation was O’Brien’s claim that Trump’s net worth was actually in the neighborhood of $150 million to $250 million rather than the $5 billion to $6 billion he had claimed. After five long years of litigation, O’Brien won a ruling from a state appellate court granting judgment in his favor and finding that Trump could not, as a matter of law, meet the actual malice test. Unbowed and unrepentant, Trump told Washington Post reporter Paul Farhi earlier this year: “I spent a couple of bucks on legal fees, and they [O’Brien and Time Warner] spent a whole lot more. I did it to make his life miserable, which I’m happy about.” He has followed a similar tack in one of the federal fraud lawsuits pending in San Diego against the now-defunct Trump University, lodging a defamation counterclaim against plaintiff Tarla Makaeff for speaking out in letters to the Better Business Bureau, her bank and government agencies, and in comments published online, against the instructional real-estate program that bore his name. The counterclaim was eventually thrown out by the 9th Circuit Court of Appeals also relying on the Sullivan decision. The case is now set for trial in late November. Interviewed on Fox News by Megyn Kelly last month, Trump doubled down on his litigation rationale. “[I]t’s a tactic for me,” he acknowledged. “It’s a business for me, and I have been successful, and I’ve … used litigation … sometimes … maybe when I shouldn’t.” It would be bad enough if Trump were the only 1 percenter who used meritless defamation complaints as a means to punish his critics in the press and elsewhere. But he isn’t. To the contrary, he’s created a template that others have followed. In 2013, for example, Idaho billionaire and longtime Republican donor Frank VanderSloot sued Mother Jones magazine for defamation related to a 2012 story about VanderSloot’s $1 million contribution to Mitt Romney’s super PAC. Although Mother Jones managed to have the case dismissed two years later, doing so cost it and its insurer $2.5 million in legal expenses, including $650,000 in out-of-pocket costs for the magazine. Like Trump, whom he now supports for president (after initially backing Marco Rubio), VanderSloot has no regrets. Despite his courtroom setback, he’s created an endowment—the Guardian of True Liberty Fund—to help defray the legal expenses of others allegedly defamed by Mother Jones and other liberal press outlets. The chilling effect on press freedoms posed by such undertakings, especially for thinly capitalized publications, couldn’t be clearer. Hogan, Litigation Funding and the Demise of Gawker Last Friday, Gawker Media LLC, the publisher of the eponymous celebrity online gossip blog, petitioned a federal court for Chapter 11 bankruptcy protection prompted by a $140 million civil judgment that had been returned against it by a Florida jury this March in an invasion of privacy case brought by Hulk Hogan (Terry Gene Bollea). Hogan’s case against Gawker began in October 2012 after Gawker posted a videotape showing the wrestler having sex six years earlier with a woman named Heather Clem, the wife of Hogan’s then-best friend, Todd Clem, a former Florida radio disc jockey who had legally changed his name to Bubba the Love Sponge. The tape had been filmed surreptitiously by Bubba, and was subsequently sent to Gawker by an anonymous source. Seeking damages for emotional distress, Hogan’s lawyers based their complaint not on defamation grounds, but on privacy violations. In particular, they argued that Gawker had committed a tort (or civil wrong) recognized in most states, including Florida, that creates liability for the publication of embarrassing private facts. Unlike defamation claims, which assert that published material is false, privacy actions like Hogan’s permit recovery for the publication of true stories. In addition, plaintiffs suing for the publication of private facts are not subject in most jurisdictions to the Sullivan rules requiring a showing of actual malice or recklessness. They must, however, prove that the published facts were not “newsworthy” or a matter of legitimate public concern. With the newsworthiness of the video as the central issue, the case was fiercely and expensively litigated all the way through trial, with Hogan’s attorneys arguing that the tape was nobody’s business and Gawker’s lawyers countering that given Hogan’s celebrity status and long-standing boasts of sexual prowess, the tape was of genuine public interest and its publication protected under the First Amendment. The six-person jury seated in the case resolved the issue against Gawker. Dig, Root, Grow

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In this Article:
#2016 election#buzzfeed#defamation#donald trump#fbi#first amendment#gawker#hillary clinton#huffington post#hulk hogan#jeff bezos#media#mitt romney#mother jones#national review#new york times#nsa#peter thiel#press#super pac#surveillance#td-original#univision#usa#washington post