Donald Trump, not one to shy away from the headlines, reportedly has dismissed his defamation lawsuit against comedian Bill Mahr. Trump sued Mahr over his offer to donate $5 million to charity if Trump could prove that he was not the progeny of an orangutan. Trump, clearly irate, sued Mahr for defamation, however, the lawsuit, if only based on those comments, would be frivolous and without legal foundation because that kind of comment is not defamatory for a number of reasons.
Allegations of defamation from media figures, rises to a higher standard than among private citizens regarding non-public matters. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Public plaintiffs suing public defendants must prove actual malice which is defined as knowing the defamatory statement is false or a lack of good faith investigation into the veracity of the statement. Id. These plaintiffs may not sidestep this higher requirement through a "related causes of action to avoid the constitutional requisites of a defamation claim.” Moldea v. New York Times Co., 306 U.S. App. D.C. 1, 10-11, 22 F.3d 310, 319-20 (1994).
Defamation in Illinois requires
Defamation per se is a form of defamation where the statements are so harmful and of such a nature that the injury can be presumed, without factual proof. Learn more about Defamation per se and what kinds of statements are defamatory per se and what are defamatory per quod.
There are a number of affirmative defenses to defamation including substantial truth, innocent construction, absolute privilege, and qualified privilege. Anderson v. Vanden Dorpel, 172 Ill. 2d 399 (1996).
Commercial litigation often involves other torts, such as tortious interference with contract, false light, and other claims. This blog article focuses only on defamation. Check out the other articles on this blog on those topics to learn more about those claims.
Here, Mr. Mahr's statement was clearly in jest and parodying the $5 million offer Mr. Trump gave to the public for information the President Obama was not born in the United States. If a statement viewed in its specific context is obviously an exaggeration rather than literal fact, the statement is considered rhetorical hyperbole and is not defamatory. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 15 (Ill. 1992). Thus, on its face, this lawsuit is frivolous because those statements, if they are construed as factual statements harming his reputation, are not defamatory because they are clearly exaggerations and parody for the purposes of political commentary. Mr. Trump himself vaulted himself into a very public issue and therefore he has a heavy burden to substantiate that, based on what was alleged, he did not come close to meeting at this time.
Another possible issue for Mr. Trump, if he were to litigate in Illinois, would be that his lawsuit could be viewed as a SLAPP lawsuit. In 2007, the Illinois legislature enacted the Citizen Participation Act in order to combat the rise of what have been termed "Strategic Lawsuits Against Public Participation," commonly called SLAPPs.
A SLAPP is a meritless lawsuit that is used to retaliate against a defendant for attempting to participate in government by exercising some first amendment right such as the right to free speech or the right to petition. See Sandholm v. Kuecker, 2012 IL 111443, ¶¶ 33-34 (Ill. 2012). “Plaintiffs in SLAPP suits do not intend to win but rather to chill a defendant's speech or protest activity and discourage opposition by others through delay, expense, and distraction."
Basically, SLAPP suits rely on the fact the more powerful, richer Plaintiff can use litigation costs to force defendants from voicing opposition or participating in protest activities. Id. ¶ 34.
In the end, litigants need to be very careful when suing someone for defamation. Be sure to take the necessary steps to ensure that your defamation claim is proper. First speak with an attorney to determine what your burden of proof is for your particular claim. Figure out whether you can meet this burden of proof. Determine whether your claim is defamatory per se or whether you must allege sufficient facts to meet the damages element in a per quod action. Finally, speak with an attorney to determine whether the defendant has valid affirmative defenses or whether your litigation is subject to an Anti-SLAPP counterclaim. Nair Law LLC handles all kinds of defamation claims and can help any litigant either defend defamation claims or help plaintiff's stop defamatory statements and recover against these tortfeasors. Contact us today to help walk you through this complicated legal process and determine whether additional claims apply, especially in commercial litigation cases.
Defamation in Illinois requires
- the defendant made a false statement about the plaintiff;
- there was an unprivileged publication to a third party;
- fault by the defendant amounting to at least negligence; and
- the publication damaged the plaintiff.
Defamation per se is a form of defamation where the statements are so harmful and of such a nature that the injury can be presumed, without factual proof. Learn more about Defamation per se and what kinds of statements are defamatory per se and what are defamatory per quod.
There are a number of affirmative defenses to defamation including substantial truth, innocent construction, absolute privilege, and qualified privilege. Anderson v. Vanden Dorpel, 172 Ill. 2d 399 (1996).
Commercial litigation often involves other torts, such as tortious interference with contract, false light, and other claims. This blog article focuses only on defamation. Check out the other articles on this blog on those topics to learn more about those claims.
Here, Mr. Mahr's statement was clearly in jest and parodying the $5 million offer Mr. Trump gave to the public for information the President Obama was not born in the United States. If a statement viewed in its specific context is obviously an exaggeration rather than literal fact, the statement is considered rhetorical hyperbole and is not defamatory. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 15 (Ill. 1992). Thus, on its face, this lawsuit is frivolous because those statements, if they are construed as factual statements harming his reputation, are not defamatory because they are clearly exaggerations and parody for the purposes of political commentary. Mr. Trump himself vaulted himself into a very public issue and therefore he has a heavy burden to substantiate that, based on what was alleged, he did not come close to meeting at this time.
Another possible issue for Mr. Trump, if he were to litigate in Illinois, would be that his lawsuit could be viewed as a SLAPP lawsuit. In 2007, the Illinois legislature enacted the Citizen Participation Act in order to combat the rise of what have been termed "Strategic Lawsuits Against Public Participation," commonly called SLAPPs.
A SLAPP is a meritless lawsuit that is used to retaliate against a defendant for attempting to participate in government by exercising some first amendment right such as the right to free speech or the right to petition. See Sandholm v. Kuecker, 2012 IL 111443, ¶¶ 33-34 (Ill. 2012). “Plaintiffs in SLAPP suits do not intend to win but rather to chill a defendant's speech or protest activity and discourage opposition by others through delay, expense, and distraction."
Basically, SLAPP suits rely on the fact the more powerful, richer Plaintiff can use litigation costs to force defendants from voicing opposition or participating in protest activities. Id. ¶ 34.
In the end, litigants need to be very careful when suing someone for defamation. Be sure to take the necessary steps to ensure that your defamation claim is proper. First speak with an attorney to determine what your burden of proof is for your particular claim. Figure out whether you can meet this burden of proof. Determine whether your claim is defamatory per se or whether you must allege sufficient facts to meet the damages element in a per quod action. Finally, speak with an attorney to determine whether the defendant has valid affirmative defenses or whether your litigation is subject to an Anti-SLAPP counterclaim. Nair Law LLC handles all kinds of defamation claims and can help any litigant either defend defamation claims or help plaintiff's stop defamatory statements and recover against these tortfeasors. Contact us today to help walk you through this complicated legal process and determine whether additional claims apply, especially in commercial litigation cases.
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