Anthony Scaramucci, known for his short tenure as a spokesman for the White House and given to rhetorical hyperbole, is not fond of being on the receiving end of rhetorical barbs. In response to two opinion pieces published in The Tufts Daily by Camilo Caballero, a graduate student who objects to Scaramucci’s inclusion on a board of advisors at Tufts, Scaramucci hired a lawyer to demand an apology, on pain of litigation.
The Tufts Daily reports that Scaramucci’s lawyer sent a demand letter to both the student newspaper and Caballero:
On Nov. 21, the Daily received a letter from the law firm Sadis & Goldberg LLP, which was retained by former White House Communications Director Anthony Scaramucci. The letter demanded that the Daily retract parts of two op-eds pertaining to Scaramucci’s position on The Fletcher School of Law and Diplomacy Board of Advisors and issue a public apology, or legal action would be pursued.
That letter lists four “egregiously false statements” that are allegedly defamatory: that Scaramucci is an “unethical opportunist,” that he “sold his soul in contradiction to his own purported beliefs for a seat in that White House,” that he “cares about gaining attention and nothing more,” and that he “makes his Twitter accessible to friends interested in giving comfort to Holocaust deniers.”
Scaramucci’s threat is baseless. While defamation is a well-recognized exception to the First Amendment, it is a narrow exception limited to statements that are “provable as false” — that is, statements which can be shown to be false. Statements of opinion and rhetorical hyperbole cannot be shown to be false. For example, describing a government official as having “white nationalist … tendencies” is a statement of opinion. Contrast that with stating that an official has committed “a felony” based upon a particular act, which is closer to a statement of fact because it’s an accusation concerning specific conduct.
Courts look to the “totality of circumstances” to determine whether a given statement is one of opinion or fact: would a reasonable reader, familiar with the context of the statement, believe it to be a factual assertion, or something else — for example, a statement making an argument based on disclosed facts, rhetorical hyperbole, or figurative speech? These pieces, published in the “opinion” section of a newspaper, laden with rhetorical hyperbole (e.g., saying that Scaramucci “sold his soul”) aimed at making an argument about whether Scaramucci should sit on a particular board, are likely to be perceived as statements of opinion, not fact.
Nor do Caballero’s statements amount to false statements of fact. For example, whether someone has “sold his soul” cannot be objectively verified, and statements impugning Scaramucci as “unethical” are clear opinion based on his observed tenure in the White House, not likely to be read as an assertion of some undisclosed fact.
As for the statement that Scaramucci “makes his Twitter accessible to friends interested in giving comfort to Holocaust deniers,” the op-ed links to a Huffington Post piece discussing a controversial Twitter poll posted by Scaramucci’s media venture. The assertion of fact — that Scaramucci made the Twitter account accessible to someone else — is true. The characterization of that act — that it amounted to “giving comfort to Holocaust deniers” is a statement of opinion.
Courts have repeatedly held that statements characterizing the views of another as hateful generally do not amount to actionably false statements of fact, either because the statements rely on disclosed facts, because the characterization is hyperbolic criticism, or because they are subjective opinions incapable of objective verification. While there have been cases holding otherwise, the dominant trend is to protect such statements as opinion; after all, whether someone’s views or acts are hateful or bigoted is a matter of subjective opinion, not objective fact.
Moreover, Scaramucci’s demand letter recounts little evidence that the statements were made with actual malice, a legal term of art that does not simply mean that the speaker despises the offended subject. Under the First Amendment, public figures — like Scaramucci — must show, with clear and convincing evidence, that the statement was published with actual knowledge that it was false or that the publisher subjectively “entertained serious doubts” about the truth of the statement, but published it anyway. This high burden is imposed in order to provide “breathing space” for political speech; as the Supreme Court has held, “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.” In other words, public commitment to freedom of speech means that people should be able to express caustic opinions and get things wrong without fear of a crushing lawsuit.
Scaramucci’s letter doesn’t come close to making this showing. It recounts as “further proof of malice” that the student said Scaramucci was “unethical” in two separate pieces. But repeating a statement would tend to show that the speaker believes the statement, not his subjective doubts about its truth. The letter also impliedly argues that the author could have presented Scaramucci’s argument that his partner’s “intent” in the controversial poll was to “combat Holocaust denial.” But declining to give equal time to an alternate explanation is not clear and convincing evidence of actual malice, absent evidence that the writer believed that explanation and purposefully excluded it. And Scaramucci’s partner apologized for the poll and Scaramucci pledged to donate $25,000 to the Simon Wiesenthal Center — an implicit acknowledgement that many people did view the poll as offensive.
Scaramucci now says that all he needs is “an apology and correction.” Asking for an apology and a correction doesn’t require a lawyer. Scaramucci could rebut this student’s opinion by presenting facts of his own. Instead, he hired a lawyer.
That’s because Scaramucci’s threat is not aimed at vindicating some egregious wound to his reputation. As Ken White writes at Popehat, it is a “vexatious, meritless, dishonest, and thuggish” attempt to coerce an apology, wielding the specter of litigation — which carries with it crushing attorneys’ fees, months or years of delays and stress, and the possibility of a monetary judgment, however remote — as a cudgel. It costs little to pay a lawyer to send a demand letter or file a lawsuit, but defending that lawsuit can be ruinously expensive. Student newspapers and journalists are particularly vulnerable to threats designed to shape or chill their coverage, lacking ready access to lawyers or other resources they could use to counter those threats.
Such threats present a chilling choice to the student and the newspaper: pay tremendous costs to defend their right to publish an opinion piece, or apologize for offending someone who can pay that cost. While other states have anti-SLAPP statutes that would allow a writer facing a frivolous defamation suit to end the lawsuit quickly — and require the plaintiff to pay their attorneys’ fees — Massachusetts has a weak anti-SLAPP statute that is inapplicable here.
Threats like Scaramucci’s represent a threat to free speech. They also often backfire, as here, in that they are more likely to draw far broader attention to the opinion pieces than they are to extract a sincere apology.