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Are my statements about a large national company I purchased services or…

Are my statements about a large national company I purchased services or products from defamatory so that the company may have a valid claim against me?

29 August 2019

Answer: Maybe, but there could be hope to adequately defend against the suit based on a constitutional analysis of the facts giving rise to the debate.  A look at one of our President’s prior lawsuits sheds some light on this possibility.

In one of Donald J. Trump’s many lawsuits, he countersued for defamation against a plaintiff who made various claims concerning Trump University’s business practices.  Makaeff v. Trump University, LLC, 715 F.3d 254 (9th Cir. 2013).  The case took many twists and turns and there are many legal details we will not delve into, except one issue that arose.  It was whether Trump University had a reasonable chance to prove its case.  This in turn raised the question of what standard Trump U had to meet, which in turn raised the constitutional question of whether Trump U was a limited purpose public figure.  This is not the question about Mr. Trump as an individual, which there would be no doubt he is a public figure in every sense of the phrase, but Trump University.

At the trial level, the United States District Court ruled that Trump U was not a limited purpose public figure, but the United States Court of Appeals reversed on that issue as the author now describes.  Again, keep in mind, we only move to the question of whether the entity is a limited purpose public figure when the entity is not generally a public figure (like Donald J. Trump is in his individual capacity.)  To ask this question, the stage must be set, there must be a controversy on an issue and the defamation at issue must pertain to that controversy.  The third required element is if they “thrust [themselves] into the forefront” of the controversy at issue “in order to influence the resolution of the issues involved.”  Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).  The subject matter at issue, that the plaintiff was suing about, was Trump U’s educational practices.  Interestingly, the United States Court of Appeals found Trump U’s “aggressive advertising campaign” in various forms, including books published, spoke to that issue and thus it became a limited purpose public figure with respect to its advertising.  This is worth repeating and the author is intrigued by the fact that despite the communications came in the form of advertising, and not in the manner one may usually think of some entity “thrusting” itself into an issue or debate, such as a press conference by a spokesperson, the court still found Trump U did so by advertising and became a limited purpose public figure. Makaeff v. Trump University, LLC, 715 F.3d 254, 271-272 (9th Cir. 2013).

In Trump U’s case, this was not good news because this decision changed the applicable standard to a higher one for Trump U to meet. This it made it harder for it to show it had a good case and effected a different and even more important legal question in the case.  This post is not devoted to other details or the overall case, but suffice to say this one ruling led to Trump U essentially losing the case.  The take away is that advertising’s content may make a difference.

As shown, defamation can be very complicated, and the issues can be intertwined.  In the event that you find yourself in a position of possibly having a claim or in defending against one, feel free to give this office a call.