The Volokh Conspiracy
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Trump's Personal Defamation Lawsuit Against Pulitzer Prize Board Members May Continue
So holds the Florida Court of Appeal, rejecting the members' claim that they aren't subject to personal jurisdiction in Florida. The majority doesn't discuss the substantive merits of the case.
From Alexander v. Trump, decided today by Florida Court of Appeal Justices Jeffrey Kuntz, Burton Conner, and Ed Artau:
President Donald J. Trump, a Florida resident, sued nineteen individual members of the Pulitzer Prize Board, an unincorporated association, for defamation and conspiracy. Trump alleged that he sent letters on his personal letterhead to members of the Pulitzer Prize Board. The letters demanded the Pulitzer Prize Board take action to strip The Washington Post and The New York Times of the Pulitzer Prize awarded in 2018 for articles on purported Russian interference in the 2016 presidential election and alleged connections to Trump.
After Trump sent the letters, the Pulitzer Prize Board met remotely and concluded "no passage or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes." The Board then issued the following statement on its website, with links to the original articles:
A Statement from the Pulitzer Prize Board
The Pulitzer Prize Board has an established, formal process by which complaints against winning entries are carefully reviewed. In the last three years, the Pulitzer Board has received inquiries, including from former President Donald Trump, about submissions from The New York Times and The Washington Post on Russian interference in the U.S. election and its connections to the Trump campaign--submissions that jointly won the 2018 National Reporting prize.
These inquiries prompted the Pulitzer Board to commission two independent reviews of the work submitted by those organizations to our National Reporting competition. Both reviews were conducted by individuals with no connection to the institutions whose work was under examination, nor any connection to each other. The separate reviews converged in their conclusions: that no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes.
The 2018 Pulitzer Prizes in National Reporting stand.
This statement led to Trump's lawsuit. But this appeal does not require us to address the merits of Trump's conspiracy and defamation claims. Instead, we focus on the personal jurisdiction issue raised by a motion to dismiss Trump's amended complaint. Of the nineteen defendants sued by Trump, only one resides in Florida. The remaining eighteen moved to dismiss the case for lack of personal jurisdiction. The eighteen defendants argue they did not commit a tortious act and did not direct the statement into Florida….
The circuit court concluded that the exercise of personal jurisdiction over the eighteen defendants was proper. We agree. Trump's operative pleading sufficiently pled that the defendants engaged in a conspiracy to defame him. Further, the defendants issued the website public statement in response to the requests of a Florida resident—Trump. They did so in a meeting attended remotely by a Florida resident who also conducted an editing review of the proposed website statement while in Florida.
Because Trump met the personal jurisdiction requirements of Florida's long arm statute and the Due Process Clause, the circuit court's order is affirmed.
Justice Artau added a separate concurrence that also opined on the merits:
"FAKE NEWS." "The phony Witch Hunt." And "a big hoax." President Donald J. Trump has publicly used these phrases to describe the now-debunked allegations that he colluded with the Russians to win the 2016 presidential election.
As noted in the President's complaint, Special Counsel Robert Mueller, Attorney General William Barr, the House of Representatives' Permanent Select Committee on Intelligence, and the United States Senate's Select Committee on Intelligence all concluded "there was no evidence of collusion between President Trump, the Trump Campaign, and Russia." In other words, as the President asserts, "[t]he Russia Collusion Hoax was dead, at least until Defendants [as members of the Pulitzer Prize board] attempted to resurrect it" by conspiring to publish a defamatory statement falsely implying that the President colluded with the Russians.
I join the unanimous majority opinion because I agree that Florida's long-arm statute and the Fourteenth Amendment's Due Process Clause allow for the exercise of personal jurisdiction over the non-resident defendants for their alleged roles in conspiring to issue the defamatory statement standing by the debunked allegations that the President colluded with the Russians. But I write separately to address the merits of the President's defamation and conspiracy claims because the nonresident defendants challenge them here by arguing that they are not actionable under Florida's long-arm statute. Thus, the merits of the President's claims are crucial to our jurisdictional analysis and will be addressed in this opinion….
The concurring opinion is long, and can be read here. A short excerpt of the substantive defamation discussion:
Here, personal jurisdiction can constitutionally be exercised over the non-resident defendants because the President satisfied his burden to show that the non-resident defendants knowingly participated in a civil conspiracy with a resident defendant to defame the President.
The complaint asserted that "the nonresident Defendants knew Defendant [Neil] Brown was a resident of Florida when they willingly participated in a conspiracy with him to defame Plaintiff. Defendant Brown is a prominent figure in American media, leading the St. Petersburg-based Poynter Institute, a non-profit organization that serves the journalism establishment."
The complaint then asserted that, in response to the President's request for the Pulitzer Prize board members to withdraw the 2018 Pulitzer Prize in National Reporting after The Washington Post itself made corrections and deletions to the award winning article, "[t]he Pulitzer Prize board took no immediate public action" but instead "the board—including several Defendants who served on the Pulitzer Prize board at the time—circled the wagons to discuss, vote on, and authorize another evaluation of the 2018 Pulitzer Prize in National Reporting[.]"
The complaint then went on to assert that "Defendant Daniszewski and Defendant Boo, sitting as co-chairs collaborated closely with Defendant Kliment … and with incoming co-chairs Defendant Shelby and Defendant Brown to draft a statement in response to President Trump's letters" and this "statement would eventually be approved for publication by each of the Defendants through a full board vote and become the defamatory statement at issue in this case."
The complaint then further asserted that after the President made another request for the 2018 Pulitzer Prize in National Reporting award to be rescinded, "Defendants again took no public action, but communicated privately, including via phone and email. Defendants Daniszewski, Boo, Kliment, Brown, and Shelby finalized their defamatory statement and presented it to the remaining Defendants for approval prior to publication." The complaint also asserted that following this, "Defendants, as members of the Pulitzer Prize board, were briefed on the smaller group's work and thereafter approved the content and directed the publication of the defamatory statement."
The complaint continued by asserting that "Defendants, with knowledge of its falsity and/or reckless disregard for the truth, published the Pulitzer Statement to include the false implication that there was an established, nefarious connection between Russian attempts to interfere in the 2016 U.S. election, President Trump, and his presidential campaign, when it was crystal clear that no such connection existed" and the President suffered damages from this tort.
Moreover, the evidence submitted to the trial court did not dispel the President's assertion that the non-resident defendants knowingly participated in a civil conspiracy with defendant Brown to defame the President. As the trial court correctly concluded after considering the evidence submitted, the President met his burden to prove that jurisdiction could be exercised over the non-resident defendants….
The non-resident defendants also argue that the conspiracy theory of jurisdiction does not apply to them because they are all members of one Pulitzer Prize board. They argue that under the intra-corporate conspiracy doctrine, members of a board cannot conspire with each other.
However, the non-resident defendants do not contest the fact that the Pulitzer Prize board is an unincorporated association. Because it is an unincorporated association, it is not a separate legal entity from its members….
Because the intra-corporate conspiracy doctrine "stems from basic agency principles that 'attribute the acts of agents of a corporation to the corporation[ ] so that all of their acts are considered to be those of a single legal actor[,]' " the doctrine provides that "it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself[.]" Thus, it necessarily follows that the doctrine does not apply to the unincorporated Pulitzer Prize board because it is not a legal entity that the law recognizes as "a single legal actor." To the contrary, "[t]he individual members of [the] unincorporated [board] are personally liable for tortious acts they individually commit or participate in, or which they authorize, assent to, or ratify." …
Justice Artau went on to argue in some detail, that New York Times v. Sullivan was inconsistent with the original meaning of the First and Fourteenth Amendments, and closed that section with:
[U]nless and until the Supreme Court overturns New York Times Co. v. Sullivan, the actual malice standard, which the President sufficiently pled here, must apply. However, inferior courts can suggest, as I do here, that the Supreme Court revisit whether New York Times Co. v. Sullivan should continue to be the law of the land despite historical evidence showing it does not comport with the original understanding of the First Amendment.
Justice Artau's conclusion:
The President has met his burden of establishing jurisdiction to proceed with his asserted claims that the non-resident defendants acted with actual malice or reckless disregard for the truth by knowingly conspiring with the Florida resident defendant to defame the President by publishing the statement with "[t]he ultimate purpose of … resurrect[ing] the debunked Russia Collusion Hoax[,]" when, at the time the statement was issued, "it was abundantly clear to anyone interested in the truth that the Russia Collusion Hoax was utter fiction" and "had been contrived and concocted by malicious partisans[.]"
Therefore, the trial court correctly denied the non-resident defendants' motion to dismiss the President's claims over the asserted publication of defamatory "FAKE NEWS" [quoting Trump].
Jeremy D. Bailie, Timothy W. Weber, and R. Quincy Bird of Weber, Crabb & Wein, P.A. represent Trump.
