As I approached the start of my first-year torts classes at George Washington University, we have a rather intriguing tort action being threatened by the First Lady. Melania Trump has been pursuing media outlets claiming that she was introduced to or had close contact with the notorious Jeffrey Epstein. However, the latest recipient of a notice letter is none other than the son of the prior president, Hunter Biden.
The letter below focuses on two statements made by Biden in a video interview with Channel 5’s Andrew Callaghan, posted to YouTube in early August.
a. “Epstein introduced Melania to Trump. The connections are, like, so wide and deep.”
b. “Jeffrey Epstein introduced Melania, that’s how Melania and the First Lady and the President met. Really? Epstein made the intro? Yeah, according to Michael Wolff.”
The First Lady’s counsel, Alejandro Brito, wrote to Biden’s attorney, Abbe Lowell, that the statements are defamatory per se. The common law has long recognized per se categories of defamation where damages are presumed and special damages need not be proven. These include: (1) disparaging a person’s professional character or standing; (2) alleging a person is unchaste; (3) alleging that a person has committed a criminal act or act of moral turpitude; (4) alleging a person has a sexual or loathsome disease; and (5) attacking a person’s business or professional reputation.
It would be interesting if Hunter’s counsel claimed that the First Lady is technically a “public official” to trigger a higher standard of proof.
In New York Times v. Sullivan, the Supreme Court crafted the actual malice standard that required public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth.
The First Lady has a federal budget, staff, and official duties.
In the end, it is likely a moot point since, even if she is not a public official, she is clearly a public figure.
The actual malice standard was later extended to public figures. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
Brito is claiming damages of $1 billion notice over statements that are “false, defamatory, disparaging, and inflammatory statements” made about the First Lady:
“These false, disparaging, defamatory, and inflammatory statements are extremely salacious and have been widely disseminated throughout various digital mediums. Indeed, the video has since been re-published by various media outlets, journalists, and political commentators with millions of social media followers that have disseminated the false and defamatory statements therein to tens of millions of people worldwide.”
In laying the foundation for reckless disregard of the truth, Brito is citing the dubious source for the information as “serial fabulist Michael Wolff, whose lies were published by The Daily Beast in the article titled ‘Melania Trump ‘very involved’ in Epstein Scandal: Author.’”
Wolff is highly controversial. We previously discussed how his sensational claims have been regularly challenged. That led to a rare rebuke from Special Counsel Mueller after the publication of his book “Siege: Trump Under Fire.” The Special Counsel’s office has already made a rare public denial of one of those claims: that Mueller’s office actually drafted indictments against Trump for obstruction of justice. The New York Times reported on the new book as coming out “despite lingering questions about its accuracy.”
While Mueller’s office categorically denied the claim, Wolff insisted ‘My source is impeccable, and I have no doubt about the authenticity and the significance of the documents.”
The notice letter is ironic given Hunter Biden’s scorched Earth strategy of threatening lawsuits, including defamation, against critics. It did not work. Indeed, Biden abandoned lawsuits after his pardon by his father.
Previous media outlets have pulled similar statements against the First Lady.
The Daily Beast pulled the article detailing allegations by Wolff that Melania Trump was introduced to her husband, Donald Trump, via a modeling agent connected to Epstein. It ran the following notice: “Editor’s Note. After this story was published, The Beast received a letter from First Lady Melania Trump’s attorney challenging the headline and framing of the article. After reviewing the matter, the Beast has taken down the article and apologizes for any confusion or misunderstanding.”
Likewise, James Carville apologized to the First Lady after repeating the claim and stated on his podcast:
“In last week’s podcast episode, we spoke with Judd Legum. After the episode, we received a letter from Melania Trump’s lawyer. He took issue with our title of one of those YouTube videos from that episode and a couple of comments I made about the first lady. We took a look at what they complained about, and we took down the video and edited out those comments from the episode. I also take back these statements and apologize.”
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Author: jonathanturley
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