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Saturday, October 24, 2020

Declaratory judgment of protected speech

ElDfrdHUcAEQYGkThe Lincoln Project erected these billboards in Times Square, suggesting lack of concern about COVID by Ivanka Trump and Jared Kushner. Attorney Marc Kasowitz sent the Lincoln Project a two-paragraph letter stating the billboards are "an outrageous and shameful libel" and that if they "are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages."

Needless to say, the statements on the billboard are not libelous, regardless of whether they are outrageous or shameful. And it is doubtful that Javanka will recover compensatory and punitive damages, let alone enormous ones. The billboards imply callous disregard for COVID deaths, which is non-actionable opinion. The quotation from Jared comes from a Vanity Fair article about the administration's COVID response. The full statement is that New York Governor Andrew Cuomo did not do enough to get PPE, so "his people are going to suffer and that's their problem." It is at least ambiguous whether "their" refers to Cuomo or "his people" (meaning New Yorkers); so even if it leaves a false impression, it does not rise to actual malice. The juxtaposition of their photos with body bags and death tolls is hyperbole. And, again, these are government officials.

Anyway, this letter is no different from the many bumptious letters that President Trump and other Republicans send to their human and bovine critics over plainly protected speech. They often give attorneys a chance to wave the banner of the First Amendment in their responses. But Popehat views these letters as a genuine threat to free speech when in furtherance of "abusively frivolous" defamation claims (which this letter is). So he offers a proposal:  The "'That's Not Defamation' Declaratory Relief Act:"

Under the statute, the Lincoln Project could send a demand to Kasowitz and the Kushners to withdraw the threat. If they don’t withdraw the threat, Lincoln Project can sue under the statute seeking a declaration that the speech is not defamatory. They can bring the equivalent of an anti-SLAPP motion immediately. If they prevail, they get an order that the speech is not defamatory ....AND they get attorney fees collectible from (this is key) either the Kushners or Kasowitz. If the judge finds the threat was frivolous, he or she can impose penalties on top of the fees. Would make legal threats have consequences.

White views attorneys as a big part of the problem. We expect people who believe they have been wronged to be angry and to lash out. We perhaps should expect more restraint from public officials and in the past we got it, but the human reaction is understandable. Attorneys are supposed to understand the law, to recognize the difference between hurt feelings and actionable defamation, and to talk their clients off the ledge, especially from throwing around money and power. An attorney who sends a letter such as this does the opposite; indeed, he exacerbates those money-and-power imbalances.

A declaratory judgment of protectedness is theoretically available under the current Declaratory Judgment Act, but defendants do not avail themselves of the option. Likely because most such letters are empty threats (Donald Trump has yet to sue over 2016 reporting of sexual-assault allegations) and the defendant's prefer avoid litigation, especially because attorney's fees are not recoverable under the current law. White's proposal makes the attorney demand part of the game.

There is an interesting Fed Courts angle to this. Under Skelly Oil, an action seeking a declaration that speech is constitutionally protected/non-defamatory does not arise under federal law, because the underlying enforcement action (a defamation suit) would not arise under federal law. It could only reach federal court on diversity. So if White wants these cases in federal court, the statute should include a jurisdictional grant that does not rely on the Well Pleaded Complaint Rule.

Posted by Howard Wasserman on October 24, 2020 at 12:51 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink


"Now, his physical condition, is not a game of pure opinion. This is serious. If you don't have any scientific or well qualified opinion about his physical condition, you may become liable, whether by facts, or malice. "

IANAL, but I'd still love to see Trump sue them over this. His physicians have published obviously false statements, so discovery would be fun.

Posted by: Barry | Oct 28, 2020 2:55:43 PM

The lawyer wouldn't be subject to a D/J action under current law because the lawyer would not be party to the underlying enforcement action. Not to put words in Paul's mouth, but I read his argument to express concern that an attorney will be subject to a fees sanction for representing his client's interests through speech.

My guess is that Ken's response would be that the attorney is on the hook only if the letter makes arguments that would be sanctionable under FRCP 11(b)(2) or (b)(3) or their equivalent if made in a pleading. And things like the FRCP or ethics rules already limit lawyer speech.

Posted by: Howard Wasserman | Oct 27, 2020 8:14:20 AM

Paul: Nothing in White's suggestion affects the protectedness of the speech "What you said is defamatory." If you threaten to sue if a speaker does not C&D, you are already subject to a suit for declaratory judgment. This just makes that suit more likely from less well off C&D targets.

It is always thus: if your speech creates an actual case or controversy you are subject to suit.

Posted by: polymath | Oct 27, 2020 12:55:43 AM

In theory, that is why attorney's fees are included. They level the playing field, at least at the back end, and incentivize attorneys to take on these cases.

Posted by: Howard Wasserman | Oct 26, 2020 3:50:53 PM

Devin Nunes's cow has run up a tab "defending" against an "obviously frivolous" lawsuit.

The "That's Not Defamation' Declaratory Relief Act" might work if it was enacted, but the richer client can simply overwhelm someone of lesser means.

Mr. White should know that from his defendant who was sued by James Woods.

The justice system is inexorably weighed towards the rich.

Posted by: Shripathi Kamath | Oct 26, 2020 3:30:42 PM

Paul: Interesting point. Are lawyers limited, in some respects, in what they say as lawyers. So perhaps a C&D threatening a frivolous lawsuit, perhaps protected if made by a non-lawyer, loses some degree of protection when made by a lawyer (if it turns out the threatened lawsuit was, in fact, frivolous)? Have to give that some more thought.

Posted by: Howard Wasserman | Oct 25, 2020 12:00:48 PM

Hmm. I worry that the an anti C&D SLAPP statute would itself threaten the first amendment unless it were crafted really, really carefully. The claim "this thing you said about me is defamatory" is itself protected speech, after all...

Posted by: Paul Gowder | Oct 24, 2020 3:21:49 PM

By the way, Jonathan Turley, has just posted on that. Titled:

"Did The Lincoln Project Just Advertise Its Own Defamation Liability?"


Posted by: El roam | Oct 24, 2020 2:41:45 PM

Interesting, but one should bear in mind, too much depends upon the lawyer. One can never imagine or predict, how a resourceful and skillful lawyer, may extract new angels, from one given case. Observing things prima facie, may be one thing, totally another, after lengthy elaboration of the materials.

However, one ad or publication caught my attention. I quote from Wikipedia:

"On June 17, 2020, the Lincoln Project released two ads.[38] The first, entitled #TrumpIsNotWell,[39] ran 45 seconds and showed a video of Trump walking slowly and haltingly down a ramp at West Point,[38][40] and a video of Trump appearing to struggle to lift a glass of water,[40][39] with narration suggesting that Trump was physically unfit.[38][40][39] The ad's voiceover said, over images of Trump: "He's shaky, weak, trouble speaking, trouble walking. So why aren't we talking about this? The most powerful office in the world needs more than a weak, unfit, shaky president. Trump doesn't have the strength to lead, nor the character to admit."

End of quotation:

Now, his physical condition, is not a game of pure opinion. This is serious. If you don't have any scientific or well qualified opinion about his physical condition, you may become liable, whether by facts, or malice.

Here to Wikipedia:



Posted by: El roam | Oct 24, 2020 1:56:55 PM

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