In this election, the Lincoln Project has been arguably the most prolific anti-Trump organization in running scathing and often personal attacks on Trump, his family, and his associates. The ads have ranged from the genuinely funny to the shockingly vicious. Now however, the Project may have added openly defamatory. The Project has erected a pair…Did The Lincoln Project Just Advertise Its Own Defamation Liability? — JONATHAN TURLEY
Our Comment. Professor Jonathan Turley is a gifted constitutional scholar who has a flair for posting interesting, provocative and balanced legal arguments. In this post, he leans in favor of possible prima facie defamation claims by White House advisers Jaren Kushner and Ivanka Trump against The Lincoln Project because of the messages on its billboards.
Carl Tobias, a University of Richmond law professor, states:
Donald Trump “has honed litigation abuse, as a business person and president, to an art form,” Tobias said. But “if they did sue, the litigation might take years to resolve, be expensive and lead to embarrassing revelations … suits like this by people who have thrust themselves into the public eye are notoriously difficult to win.
“In short, this appears to be the usual Trump family bluster.”
Staci Lieffring, J.D. Candidate 2013, University of Minnesota Law School, wrote:
The First Amendment “‘has its fullest and most urgent application’ to
speech uttered during a campaign for political office.”
Recently, the Supreme Court gave even more protection to false
statements. The Court struck down the Stolen Valor Act, which
made it a crime to lie about receiving a Medal of Honor, finding
that these false statements are protected by the First Amendment.8
The Supreme Court has said, “Whatever differences may
exist about interpretations of the First Amendment, there is
practically universal agreement that a major purpose of that
Amendment was to protect the free discussion of governmental
With this backdrop, how to strike an appropriate balance between the state’s interest in maintaining election integrity on one hand, and a citizen’s right to free speech on the
other hand, is a problem that the courts and states currently
struggle to answer.
However, the Supreme Court has also stated, “That
speech is used as a tool for political ends does not automatically
bring it under the protective mantle of the Constitution. For
the use of a known lie as a tool is at once at odds with the
premises of democratic government . . . .”
Minnesota Law Review. Link: https://www.minnesotalawreview.org/wp-content/uploads/2013/02/Lieffring_MLR.pdf?
Observation. Turley’s post certainly stimulates intellectual curiosity and that kind of stimulation is what he seeks to accomplish.
As a practical matter, our view is that the Kushner and Trump claims are going nowhere.
The content of the billboards is core political speech in the middle of a divisive national political campaigns for President fully protected by the First Amendment against their claims.