Has This Judge Trumped the Donald?

by Paul Alan Levy

Could a $500,000,000 sanction for frivolous litigation be large enough that even Donald Trump would start taking the First Amendment seriously, and stop trying to use the courts to suppress lawful speech that he doesn’t like?

In the final analysis, that is the issue raised by Erik Turkewitz’ blog post today. And considering how anxious Donald Trump has appeared to secure changes in the New York Times actual malice standard, and his proclaimed willingness to file a suit against a critic, knowing that the suit is unwinnable, just for the pleasure of “mak[ing] his life miserable, which I’m happy about”, it is good to see from Eric Turkewitz’s blog that a New York judge has finally had the guts to stand up against him.

The case involved Trump’s lawsuit against Univision — a Mexican-owned Spanish-language media giant — for backing out of its connection with Trump’s beauty contest after he made hateful remarks about Mexicans. Among the claims in the litigation was one for defamation, based on an Instagram message that placed a photograph of the Charleston church mass-shooter Dylann Roof next to a photo of Trump, with the implication that their racism was comparable. Certainly the suggestion that committing mass murder with racist motives is comparable to appealing to racism to promote a candidacy for high office reflects an opinion that is open to debate, but it is plainly an opinion and in our system of free expression, “there is no such thing as a false idea.” So the defamation claim, unlike the contract claim, was plainly frivolous. (We have helped defendants with rather less resources that Univision stand up against Trump’s legal blustering.)

The suit was removed from state to federal court and ultimately dismissed there. New York’s anti-SLAPP law is both narrow and weak, but in the opinion linked from Turkewitz’ blog post, a state court judge with the rather striking name of Lester Bruce Sullivan decided to impose sanctions for frivolous litigation. And to make sure that the sanction would be felt, and thus have deterrent impact on Trump, the judge considered Trump’s reported declaration of net worth to the FEC, said to have placed it in “excess of $10 billion,” and imposed a sanction of $500,000,000.

Although Trump’s claim to be worth even $9,000,000,000 had been widely questioned, it seems to me that he will have trouble claiming that the judge overstated that number in calculating the appropriate sanction. It remains to be seen whether he has success on appeal, whether in the Appellate Division or in the court of public opinion.