Thursday, May 28, 2020

Trump's 'horrifying lies' may cost him punitive damages in civil court

Or so anyone with a speck of decency left would hope for. The DoJ might let Trump off the hook for criminal acts but civil court is totally different. Trump is vulnerable to the judgement of a civil jury for gobs and gobs of punitive damages. Following is the case by a distinguished professor of law (Yale, Berkeley).

Trump’s ‘Horrifying Lies’ About Lori Klausutis May Cross a Legal Line. The president’s innuendo about the death of a congressional staffer in 2001 could lead to a costly court judgment against him.

President Trump and his minions relentlessly grind out despicable acts — gratuitous insults to war heroes, over 18,000 (and counting) false or misleading statements, many decisions courts have ruled illegal. But Mr. Trump’s wantonly cruel tweets about the tragic death in 2001 of Lori Klausutis are distinctive: They may constitute intentional torts for which a civil jury could award punitive damages against him.

Here are the key facts. Ms. Klausutis, age 28, died in the Florida district office of a Republican congressman, Joe Scarborough, who was then in Washington. The police found no evidence of foul play and the coroner reported that the cause of death was a hard fall against a hard object precipitated by her floppy mitral valve disease.

That should have been the end of the story, but earlier this week the president tweeted to his 80 million followers that “some people think” that Mr. Scarborough, now a popular MSNBC news host who frequently criticizes Mr. Trump, “g[o]t away with murder,” calling Mr. Scarborough a “psycho” and a “total Nut job.”

The president has offered no evidence for this slander, because there is none. Last week, Timothy Klausutis, Lori’s widower husband, wrote a remarkably restrained, poignant letter to Jack Dorsey, the head of Twitter, citing the pain that Mr. Trump’s “horrifying lies” about his wife’s death have caused him and the family, and asking Mr. Dorsey to remove Mr. Trump’s tweet. Mr. Dorsey has refused, most likely because the 1996 Communications Decency Act probably protects him from defamation claims for publishing the words of another. However Twitter added a warning label to the president’s false tweets on Tuesday about mail-in ballots, the first time the service has taken such a step.

The text of the letter follows the break below.

Mr. Trump’s first tort is called intentional infliction of emotional distress, which the courts developed precisely to condemn wanton cruelty to another person who suffers emotionally as a result. This tort, which is sometimes called “outrage,” readily applies to Mr. Trump’s tweets about Ms. Klausutis. They were intentional and reckless, and were “extreme and outrageous” without a scintilla of evidence to support them. And they caused severe emotional distress — the protracted, daily-felt grief described in Mr. Klausutis’s letter to Mr. Dorsey.

Although the tweets targeted Mr. Scarborough, his own infliction of emotional distress claim may be weaker than Mr. Klausutis’s. By shrugging off the tweet as simply political gamesmanship on the president’s part, Mr. Scarborough may not have suffered the “severe emotional distress” required for an intentional infliction of emotional distress claim.

Even so, Mr. Scarborough might succeed in a defamation suit against Mr. Trump for reputational harm. After all, the president’s innuendo that Mr. Scarborough may have murdered Lori Klausutis — presumably credible to the many Trump Twitter followers who subscribe to conspiracy theories — may seriously harm Mr. Scarborough’s reputation with them and others.

Mr. Trump, moreover, often aims his tweets to lead multiple news cycles affecting well beyond his Twitter followers. The president will surely argue that he has not actually accused anyone of murder and was merely “raising questions.” But courts have held that such calculated innuendo can constitute defamation, depending on the facts. This would be for a jury to decide.

Mr. Scarborough, as a public figure in his own right, must satisfy the Supreme Court’s demanding test for defamation liability in its landmark New York Times v. Sullivan decision. Under this test — designed to free public debate from being unduly constrained by fear of legal liability — Mr. Scarborough must prove that Mr. Trump made his defamatory comment either with actual knowledge that it was false or with “reckless disregard” for whether it was true or false. But the president’s tweets about the Klausutis case probably satisfy this test. After all, he has not cited any evidence to support his calumny either before the tweets or in response to the backlash since then. If the jury found for Mr. Scarborough, it could require Mr. Trump to pay substantial punitive damages in addition to compensation for his reputational harm.

Under the court’s unanimous 1998 ruling in Paula Jones’s sexual harassment suit against President Bill Clinton, both of these lawsuits — by Mr. Klausutis and by Mr. Scarborough — could proceed against the president while he is still in office. Because his tweets reach followers nationwide, the lawsuits could probably be brought in any state. And since the subject of his tweets had nothing to do with his presidential responsibilities, he probably could not hide behind an assertion of executive privilege.

The Klausutis family has suffered enough for almost 20 years without having to endure Mr. Trump’s crocodile tears and malicious raking of the coals. Tort law might hold our brutish president to account.

The author, Peter H. Schuck, is an emeritus professor of law at Yale and Darling Foundation visiting professor at the University of California, Berkeley, this semester.

Thanks to Roving Reporter Sherry for his tip.

Jack Dorsey, CEO
Twitter Inc.
1355 Market Street
Suite 900
San Francisco, California 94103
Via email: jack@twitter.com
Mr. Dorsey:

Nearly 19 years ago, my wife, who had an undiagnosed heart condition, fell and hit her head on her desk at work. She was found dead the next morning. Her name is Lori Kaye Klausutis and she was 28 years old when she died. Her passing is the single most painful thing that I have ever had to deal with in my 52 years and continues to haunt her parents and sister.

I have mourned my wife every day since her passing. I have tried to honor her memory and our marriage. As her husband, I feel that one of my marital obligations is to protect her memory as I would have protected her in life. There has been a constant barrage of falsehoods, half-truths, innuendo and conspiracy theories since the day she died. I realize that may sound like an exaggeration, unfortunately it is the verifiable truth. Because of this, I have struggled to move forward with my life.

The frequency, intensity, ugliness, and promulgation of these horrifying lies ever increases on the internet. These conspiracy theorists, including most recently the President of the United States, continue to spread their bile and misinformation on your platform disparaging the memory of my wife and our marriage. President Trump on Tuesday tweeted to his nearly 80 million followers alluding to the repeatedly debunked falsehood that my wife was murdered by her boss, former U.S. Rep. Joe Scarborough. The son of the president followed and more directly attacked my wife by tweeting to his followers as the means of spreading this vicious lie.

I’m sure you are aware of this situation because media around the world have covered it, but just in case, here it is:

[There follows tweets by Trump and Trump Jr.]

My request is simple: Please delete these tweets.

I’m a research engineer and not a lawyer, but I’ve reviewed all of Twitter’s rules and terms of service. The President’s tweet that suggests that Lori was murdered — without evidence (and contrary to the official autopsy) — is a violation of Twitter’s community rules and terms of service. An ordinary user like me would be banished from the platform for such a tweet but I am only asking that these tweets be removed.

I am now angry as well as frustrated and grieved. I understand that Twitter’s policies about content are designed to maintain the appearance that your hands are clean — you provide the platform and the rest is up to users. However, in certain past cases, Twitter has removed content and accounts that are inconsistent with your terms of service.

I’m asking you to intervene in this instance because the President of the United States has taken something that does not belong to him — the memory of my dead wife — and perverted it for perceived political gain. I would also ask that you consider Lori’s niece and two nephews who will eventually come across this filth in the future. They have never met their Aunt and it pains me to think they would ever have to “learn” about her this way.

My wife deserves better.

Thank you for your consideration. I look forward to hearing from you soon.>
Timothy J. Klausutis, Ph.D.

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