The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Donald Trump is not only threatening to sue t-shirt makers, he's also going after political groups that oppose his bid for the Republican presidential nomination. Earlier this week, Trump's attorney sent a cease-and-desist letter to the Club for Growth, threatening a lawsuit if the Club does not end its ad campaign critical of Trump's past positions on taxes.
From the letter:
[Y]our Attack Ad is not only completely disingenuous, but replete with outright lies, false, defamatory and destructive statements and downright fabrications which you fully know to be untrue, thereby exposing you and your so-called "club" to liability for damages and other tortious harm. For example, while your Attack Ad blatantly misrepresents to the public that Mr. Trump "supports higher taxes", nothing could be further from the truth. To be clear, Mr. Trump's tax plan, which is scheduled to be released later this week, supports a lowering of taxes.
Not surprisingly, a closer look at your Attack Ad reveals that your supposed "source" for this statement is—according to the small print on your website—nothing more than a single article published in the Advocate on February 15, 2000 which quoted Mr. Trump as supposedly saying he would "impose a one-time net worth tax of 14.25% on the superwealthy … to pay off the national debt." That's it. While a reputable organization would have at least had the decency to disclose its source—and the fact that the source article is more than 15 years old—your pitiful little group conveniently chose to leave that information out in a deliberate attempt to mislead the public into believing that it is reflective of Mr. Trump's current position—when, unquestionably, it is not. . . .
Rest assured, however, we will not sit idly by and allow special interest groups and political action committees like yours to defame Mr. Trump and cause damage to his reputation and business interests by intentionally disseminating libelous statements you fully know to be untrue and, even worse, continue to purposely mislead the American people for your own financial gain. Toward that end, Mr. Trump has authorized our legal team to take all necessary and appropriate actions to bring an immediate halt to your defamatory Attack Ads. In the interest of avoiding what will certainly be acostly litigation process, we are prepared to offer you the one-time opportunity to rectify this matter by providing us with your prompt written assurances that (i) you have stopped running the Attack Ads; and (ii) you will not generate or disseminate any misleading or inaccurate information or make any factually baseless accusations you know to be untrue with respect to my client at any point in the future. In the event, however, we do not promptly receive these assurances, please be advised that we will commence amulti-million dollar lawsuit against you personally and your organization for your false and defamatory statements and the damage you have intentionally caused to my client's interests as well as pursue all other remedies available to us at law or in equity.
The Club for Growth is not backing down. Trump may well decide to sue, but his case has no legal merit. Even if it were possible to sue a group for allegedly misrepresenting a political candidate's positions in the midst of a campaign, Trump's case would founder because it is not defamation to cite a candidate's past positions, even if they are fifteen years old. Whatever Trump says his position on taxes is today, he has called for tax increases of various sorts in the past, and there is nothing defamatory about reminding voters of those facts and using a politician's past statements and positions to cast the politician in a bad light. (More on the absurdity of Trump's legal case here.)
I assume Trump's lawyers are aware that his suit has no legal basis. The threat of the lawsuit is not that Trump would win, but that the filing of such a suit would force the Club for Growth to defend itself, and that such a defense could be costly. This is what is commonly known as a SLAPP suit—a suit that's designed to shut people up. "SLAPP" stands for Strategic Lawsuit Against Public Participation and the idea is that well-financed plaintiffs can use lawsuits, and the threat of suits, to discourage speech that they don't like. Many jurisdictions have anti-SLAPP statutes that are designed to prevent just this sort of vexatious litigation, however, so if Trump decides to sue, he'll have to choose his venue carefully.
Meanwhile, Trump isn't only threatening lawsuits, he's also calling for the FCC to regulate comments by political commentators who criticize him in colorful terms. Seriously, after National Review's Rich Lowry suggested on Fox News that Carly Fiorina emasculated Trump in the last primary debate, Trump said Lowry should not be allowed on air and should be fined by the FCC. Eugene writes about that here.