The Donald Being Donald

Presidential candidate, real estate mogul and reality TV star Donald Trump can now add “plaintiff” to his resume.  He is suing Univision Networks & Studios, along with Alberto Ciurana, President of Programming for Univision.  The primary basis for the claim is Univision’s decision to terminate its relationship with Trump and the Miss USA pageant.      

Univision made the decision in response to certain of Trump’s comments in his announcement that he was running for president.  At its core, the case is a breach of contract dispute.  Univision either had the right to cut ties for the reasons is asserted or it didn’t.  The contract is not attached to the complaint, so I really have no idea if Univision breached it or not.   

Of course, Trump being Trump, he sees the case as far more than a mere contract dispute.  Set out below are a few highlights. On Univision’s motivation:  

While Univision has claimed in the media that its decision to cut ties with [Trump] came in response to certain comments by Mr. Trump during a June 16, 2015 campaign speech announcing his candidacy for President of the United States, the decision was, in reality, a thinly veiled attempt by Univision, a privately held company principally owned by longtime Clinton Foundation donor and current Hillary Clinton fundraiser, Haim Saban, to suppress Mr. Trump’s freedom of speech under the First Amendment . . . .  Little else can explain Univision’s decision . . . .”   

Little else?  Really?  Maybe Mr. Trump’s right.  But does he sincerely think his calling Mexican immigrants rapists might not upset Hispanics, the key demographic of Univision?  And maybe, just maybe, that’s why Univision made its decision? Does that not seem plausible?  

And part of Mr. Trump’s claim is that his offensive comments were nothing new:  

In reality,, however, Mr. Trump’s calls for immigration reform, particularly with respect to the U.S.-Mexican border, were nothing new. Indeed, for over a decade, Mr. Trump had, in numerous television and news interviews, consistently voiced his concerns regarding the influx of illegal immigrants pouring into the United States across the Mexican border and the crime that has resulted therefrom . . . .  

So, if I am reading this correctly the point is, Mr. Trump has always been a bigot, so the fact that Univision is pulling the plug now must be for some other nefarious reason.  Good luck with that strategy.   

And let’s get back to this business about Univision suppressing Mr. Trump’s freedom of speech under the First Amendment.  Um, no they’re not.  Mr. Trump is lucky there’s not a Civics exam requirement to run for President.  Because I think he’d flunk it.  The government, and really only the government, can suppress one’s First Amendment rights.  That Amendment covers only state action (technically it only covers Congress), not private parties.  So Univision may or may not have a contractual right to cut Mr. Trump loose based on his comments.  But it owes no First Amendment duty to him.  And he (or at least his lawyers) know better.   

The complaint also asserts a defamation claim against Alberto Ciurana, for posting this image on his Instagram account:  

According to the complaint:  

In a move that can only be described as both tasteless and defamatory, on June 25, 2015, Mr. Ciurana . . . posted a photo on his official Univision Instagram account comparing Mr. Trump to Dylann Roof, the 21 year old who was recently arrested in the murder of nine African Americans attending  a bible study at a church in Charleston, South Carolina, one of the worst hate crimes to ever take place on U.S. soil.  

Several things.  First, it’s interesting to note that Mr. Trump’s complaint calls the Charleston shooting a “hate crime.”  Mr. Trump’s “Fox and Friends” buddy Steve Doocy found it “extraordinary” that the shooting was called a “hate crime.”  So there’s a little progress.  Second, Mr. Ciurana’s posting was no doubt over the top.  Maybe even tasteless.  But that doesn’t make it defamatory, especially as to Mr. Trump. He’s a public figure and he’s have to establish “actual malice.”  

Among the hurdles that Mr. Trump’s defamation claim would face here is the fact that it’s not entirely clear what Mr. Ciurana meant by his posting.  That’s a problem for Mr. Trump because a defamation plaintiff has to show a false statement of verifiable fact.  The post is simply a side by side depiction of Mr. Trump and Dylan Roof.  It literally says “No Comments.”  Where’s the false verifiable fact?  Strike one.  

And it’s true a defamation plaintiff can base claim on the “implication.”  But the implication itself has to be a statement of fact.   Let’s say someone made a poster of Mr. Trump with photos of four women, and text that said “Trump Supports Traditional Marriage – Ask his Four Wives.”  The implication there would be that Mr. Trump had been married four times.  And that would be a false statement of fact.  He’s only been married three times.   

But the marriage example is different from the Roof post.  Because there’s no clear factual implication.  Strike two.  

And given that no one thinks Mr. Trump killed anyone, the worst implication from the post is that Mr. Trump and Dylan Roof are equally hateful.  But that’s an opinion.  And as the Supreme Court has said, there is no such thing as a false opinion.  So, strike three.  The defamation claim is out.   

Let’s hope that the court treats this case for what it is – a contract dispute and nothing more.  Courtrooms should not serve as stages for political theater.  And presidential candidates should have thicker skin.  And a passing understanding of Civics.