Jared Kushner and Ivanka Trump threatened to sue the Lincoln Project Thursday, over two massive, pro-Biden billboards placed in Times Square, New York.  The ads, also placed on Thursday, show Ivanka smiling and signaling praise for the coronavirus death tolls in New York and the US.  The image of Ivanka was taken from a selfie she tweeted in July, in support of the Goya company.

Kushner, on the next billboard, is shown next to body bags with a quote “[New Yorkers] are going to suffer and that’s their problem.They attributed the quote to Kushner from a source cited in a Vanity Fair story from last month, without adding the context. Cuomo didn’t pound the phones hard enough to get PPE for his state…. His people are going to suffer and that’s their problem.

On the surface it looks like an easy to prove libel case: they attributed statements, without sourcing them, that are false in their allocation and relationship to what Jared said, and Ivanka expressed approval of. 

Ads in Times Square by the Lincoln Project

Jared and Ivanka threaten to sue

In his letter to the Lincon Project,  Marc Kasowitz, who represents Ivanka Trump and Jared Kushner, said, “Mr. Kushner never made any such statement, Ms. Trump never made any such gesture and the Lincoln Project’s representations that they did are an outrageous and shameful libel. If these billboards are not immediately removed, we will sue you for what will doubtless be enormous compensatory and punitive damages. 

Responding for the Lincoln Project, attorney Matthew Sanderson, wrote that the billboards are “entirely accurate” and that the Lincoln Project “explicitly cited Vanity Fair as the source for Mr. Kushner’s featured statement. Please contact us again if at some point you somehow succeed in convincing Vanity Fair to retract its article.”  

He further said, the claim about Ivanka Trump never making “any such gesture” is “similarly incorrect.” “While serving as a White House official and in violation of federal ethics rules, Ms. Trump infamously endorsed a commercial product this past July by posting a picture of herself holding a 15.5-ounce can of Goya Black Beans with the caption, ‘If It’s Goya, it has to be good.’ The Lincoln Project replaced that can of Goya Black beans with statistical references to 33,366 dead New Yorkers and 221,241 dead Americans. Why? Because Ms. Trump endorses the Trump Administration policies that have led to an unacceptable number of American deaths every bit as much as she once endorsed that can of beans.”  

He added, “you boldly predict that the result of your lawsuit ‘will doubtless be enormous compensatory and punitive damages.’ Please peddle your scare tactics elsewhere. The Lincoln Project will not be intimidated by such empty bluster.”  

Chances of success?

The standard used for defamation for public figures and officials in the United States comes from the case New York Times v. Sullivan. Here, the Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. Nevertheless, the Court sought to create “breathing space” for the media by defining a standard that now applies to both public officials and public figures. In order to win, a claimant must show actual knowledge or reckless disregard of the alleged falsity. In fact, lawyers for Ivanka and Jared might make the case that the Lincoln Project’s letter in response does exactly that.

Legal scholar, Jonathan Turley says, the challenge Ivanka’s claim will face is that using her image could be defended as political commentary and parody.  He said, “courts tend to avoid curtailing political speech, even when it is obnoxious or unfair”. Nevertheless, previously, the Supreme Court has shown that there are limits to opinion as a defense, in cases like Milkovich v. Lorain Journal Co., (1990)- where an Ohio high school wrestling coach sued over an opinion column alleging that he had lied under oath at a public hearing. In a 7-2 opinion written by Chief Justice William Rehnquist, the court found that “expressions of ‘opinion’ may often imply an assertion of objective fact” and may inflict “as much damage to reputation” as factual claims. At the same time, the case Ollman v. Evans (D.C. Cir. 1984) pointed out that understanding the context of speech is essential too. 

For Jared’s claim, his attorney, Kasowitz noted: the quote comes from an anonymous source in Vanity Fair, an anti-Trump publication. This might be key since reckless disregard can be based on the reliance on an uncertain or unreliable source. The quote is being misrepresented because the Vanity Fair piece was about Jared discussing PPE orders for the pandemic with business leaders – an entirely different meaning from the one implied on the billboard.  A case can be made that the Billboard featuring Jared is intended to spark off anger and rancor against Jared and the Trump administration based on a falsely presented quote, thus a defamation and false light claim.

What are the motives of the Lincoln Project? Did they do this deliberately? Was their goal to get media attention to the story? 

Photo credit: FoxNews.com

Probably the best way to interpret this case is in the context of the Lincoln Project’s goals. The Lincoln Project is a prolific anti-Trump group of political, and mostly Republican, consultants and in an interview last month, founder, Stuart Stevens, gloated that they were having loads of success in distracting and hurting the Trump 2020 campaign. See here for how he claims responsibility for having Brad Parscale dismissed.  One question you might ask about their billboard campaign is: Did they spread a fake news story to get under Jared and Ivanka’s skin, and upset or distract them to the extent that they would sue the Lincoln Project? 

After all, following the election, the Lincoln Project is likely to be out of money and will have no functioning raison d’être. According to Lawyer, Robert Barnes, “it is a frightening new strategy: deliberately libel someone, to spread a fake news media story, because don’t worry you can’t be sued because your campaign will be out of money by the time you get sued”.

 

Carol King received a first-class BA (honors) in History and Politics from Stirling University, along with an exceptional commendation for a study on US public opinion and Foreign Policy. She also completed a year of study at University of London before taking up a Graduate Proctor Fellowship at Princeton University. She further completed a MPhil in American Politics at Dundee University. Aspiring to be a writer/commentator on American politics, she now writes for UncoverDC.

Twitter: @CarolKing561

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Carol King received a first-class BA (honors) in History and Politics from Stirling University, along with an exceptional commendation for a study on US public opinion and Foreign Policy. She also completed a year of study at the University of London before taking up a Graduate Proctor Fellowship at Princeton University. She further completed a MPhil in American Politics at Dundee University. Aspiring to be a writer/commentator on American politics, she now writes for UncoverDC. Twitter: @CarolKing561