FILED: NEW YORK COUNTY CLERK 01/10/2017 12:20 PM
NYSCEF DOC. NO. 26

INDEX NO. 153252/2016
RECEIVED NYSCEF: 01/10/2017

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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY IAS PART 12

 

 

. . . 
CHERYL JACOBUS, Index No. 153252/16
Plaintiff DECISION AND ORDER
-against- Mot. seq. no. 001
DONALD J. TRUMP, COREY LEWANDOWSKI,
and DONALD J. TRUMP FOR PRESIDENT, INC,
Defendants.

JAFFE, BARBARA, .:
For plaintiff: For defendants:
Jay R. Butterman, Esq. Lawrence S. Rosen, Esq.
Butterman Kahn, LLP Patrick McPartland, Esq.
219 East 31st St. Larocca Hornik Rosen, er al.
New York, NY 10016 The Trump Building
212-308-7697 40 Wall Street, 32?d 

New York, NY 10005
212-530-4822

Plaintiff sues defendants to recover damages for alleged defamation. Defendants move
pursuant to CPLR 3211 (7) for an order dismissing the complaint for failure to state a cause
of action. Plaintiff opposes.

I. BACKGROUND

Unless otherwise indicated, the following facts are taken from plaintiff?s complaint, and
are accepted as true for purposes of this motion.

Plaintiff is a ?political strategist and public relations consultant? and a frequent
commentator on television news. channels and other media outlets, offering ?political opinion and
analysis from the Republican perspective.? (N YSCEF 19, Exh. A, 1111 9-11). Defendant Donald J.
Trump was at all relevant times a candidate for the 2016 Republican nomination for the

Presidency of the United States. (Id. 1] 13). Defendant Donald J. Trump for President, Inc., was

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the campaign organization for Trump?s presidential candidacy. (Id 11 14). Defendant
Lewandowski was the Trump organization?s campaign manager. 11 12).

On or about May 18, 2015, plaintiff received a message from nonparty Jim Dornan, then
working for the campaign, asking if she would be interested in becoming the campaign?s
communications director. (Id. 11 22). The following day, plaintiff met with Dornan and
Lewandowski, and according to plaintiff, they expressed interest in working with her, with
Lewandowski asking for her salary requirements. 111] 24, 27). Later that day, Dornan sent a
message to plaintiff, stating that Lewandowski wanted to meet with her again. By email to
Lewandowski, plaintiff provided her salary requirements and indicated her interest in a position
with the campaign. (Id, 1111 28, 29).

On June 9, 2015, plaintiff met with Doman and Lewandowski for a second time. (Id. 

11 30). At this meeting, during a discussion about communications issues, Lewandowski became
agitated, loud, and rude, exclaiming that the FOX television network would do whatever the
campaign wanted, and telling plaintiff that she had no idea how FOX works. (Id. 11 31). As
Lewandowski?s agitation mounted, Dornan left the meeting, and, soon a?er, plaintiff also
excused herself. (Id. 11 32). According to plaintiff, she then decided that she could not work for .
Lewandowski, and shortly thereafter, in reply to a text from Doman, advised him that working
with Lewandowski would be too dif?cult. (Id, 1111 33, 34). No further discussions about a
position with the campaign were held with Lewandowski, or with Dornan, who subsequently
stopped working for the campaign. (Id. 1111 35, 36). Plaintiff pursued the position no further, nor

was she offered it.

On June 16, 2015, Trump formally announced his candidacy for President. In the months

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following his announcement, plaintiff frequently appeared on television as a commentator, and
posted comments on social media sites, including Twitter, both defending and criticizing Trump.
(Id, 1111 37-39).

On January 26, 2016, plaintiff appeared on a CNN cable television show to discuss
Trump?s threat to boycott one of the Republican presidential primary debates unless FOX
removed Megyn Kelly as a moderator. (Id 45-46). During her appearance, plaintiff
characterized Trump as a ?bad debater? and stated that he ?comes off like a third grader faking
his way through an oral report on current affairs? and was using the Megyn Kelly dispute with
FOX as an excuse for avoiding the debate. (Id. 1] 46). The next day, during an on?air telephone
call with the host of Morning Joe program, Lewandowski referenced plaintiff?s
comments about Trump, stating that ?[t]his is the same person . . . who came to the of?ce on
multiple occasions trying to get a job from the Trump campaign, and when she wasn?t hired
clearly she went off and was upset by that.? (Id. 49).

On February 2, 2016, plaintiff again appeared on CNN along with a Trump supporter to
discuss Trump?s claims that his campaign was self-funded and investigation ?nding that
one-third of his campaign funds came from other sources. (Id. 1] 50). Plaintiff remarked on the
show that ?there had been a Trump Super PAC, [that] the campaign lied about it, and then shut it
down,? as was reported in the news. She also said that the campaign had approached
several Republican billionaire donors, all of whom had declined to donate money to Trump. 

Later that night, Trump posted the following on Twitter: ?Great job on @donlemon
tonight @kayleighmcenany @cherijacobus begged us for a job. We said no and she went hostile.

A real dummy! (Id, 11 50). A day later, on February 3, 2016, plaintiff?s then lawyer

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sent Trump a cease and desist letter. (Id, 1] 52). Two days after that, on February 5, 2016, Trump
posted the following tweet about plaintiff: ?Really dumb @CheriJacobus. Begged my people
for a job. Turned her down twice and she went hostile. Major loser, zero credibility!? 

Some of Trump?s numerous Twitter followers responded to his tweets by attacking
plaintiff with demeaning, sometimes sexually charged, comments and graphics, including insults
aimed at her professional conduct, experience, quali?cations, and her purported rejection by
Trump. Also tweeted was an image of plaintiff with a grossly dis?gured face, and a depiction of
her in a gas chamber with Trump standing nearby ready to push a button marked ?Gas.? 

Plaintiff commenced this action in April 2016, alleging that Lewandowski?s and Trump?s
statements as set forth above defamed her, and that they constitute libel per se, as they accuse her
of unprofessional conduct, and were intended to, and did, injure her reputation in her ?eld and
caused her to lose professional opportunities. (Id. 1] 61).

II. DISCUSSION

It is well settled that assessing the adequacy of a complaint under CPLR 3211(a) (7),
the court must give the pleading a liberal construction, accept the facts alleged in the complaint
to be true and afford the plaintiff ?the bene?t of every possible favorable inference.?? (JP
Morgan Sec. Inc. Vigilant Ins. Co., 21 324, 334 [2013] [citation omitted]; see AG
Capital Funding Partners, LP. State St. Bank Trust Co., 5 582, 591 [2005]; Leon 
Martinez, 84 83, 87 [1994]). ?The motion must be denied if from the pleadings? four
corners ?factual allegations are discerned which taken together manifest any cause of action
cognizable at law.?? (51] W. 232nd Owners Corp. Jennifer Realty Ca, 98 144, 152

[2002] [citations omitted]; see Polonetsky Better Homes Depot, Inc. 97 46, 54 [2001];

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Guggenheimer Ginzburg, 43 268, 275 [1977]).
A. Defamation
1. General considerations I
A defamatory statement is ?a false statement that tends to expose a person to public
contempt, hatred, ridicule, aversion or disgrace? (Thomas H. Paul B., 18 580, 584
[2012]; see Rinaldi Holt, Rinehart Winston, Inc, 42 369, 379 [1977], cert denied 434
US 969), ?or to induce an evil or unsavory opinion of him [or her] in the minds of a substantial
number of the community? (Golub Enquirer/Star Group, Inc, 89 1074, 1076 [1997]
[citation omitted]; see Foster Churchill, 87 744, 751 [1996]; Franklin 12 Daily Holdings,
Inc, 135 87, 91 [1st Dept 2015]; see also Jewell NYP Holdings, Inc, 23 Supp 2d 348,
360-361 NY 1998]). To sustain a cause of action for defamation, the plaintiff must plead
1) a false statement, and 2) publication of it to a third party, 3) absent privilege Or authorization,
which 4) causes harm, unless the statement is defamatory per se, in which case harm is
presumed. (Stepanov Dow Jones Co., Inc, 120 28, 34 [1st Dept 2014]; Frechtman 
Gutterman, 115 102, 104 [1St Dept 2014], citing Dillon City of New York, 261 34,
38 [1St Dept 1999]; see Franklin, 135 at 91).
Whether particular words are defamatory constitutes ?a legal question to be resolved by

the court in the ?rst instance.? (Golub, 89 at 1076; Simon Schuster, 85
373, 380 [1995]; Aronson Wiersma, 65 592, 593 [1985]; James Gannett Co, 40
415, 419 [1976]). If the words are ?not reasonably susceptible of a defamatory meaning,
they are not actionable, and cannot be made so by a strained and arti?cial construction.? (Golub,

89 at 1076; Aronson, 65 at 593-594). Thus, the court must determine ??whether the

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contested statements are reasonably susceptible of a defamatory connotation, . . . [and] upon
any reasonable View of the stated facts, plaintiff would be entitled to recovery for defamation, the
complaint must be deemed to suf?ciently state a cause of action.? (Davis Boeheim, 24 
262, 268 [2014] [citations omitted]; see 85 at 380; Silsdorfv Levine, 59 
8, 12 [1983], cert denied 464 US 831; Mencher Chesley, 297 NY 94, 100 [1947] [court may
not determine sole meaning of words, only whether reasonable basis exists for defamatory
interpretation]). It is then for a jury to determine ?whether that was the sense in which the words
were likely to be understood by the ordinary and average reader.? (James, 40 at 419,
quoting Mencher, 297 NY at 100).

?Loose, ?gurative or hyperbolic statements, even if deprecating the plaintiff, are not
actionable.? (Dillon, 261 at 38, citing Gross New York Times Co., 82 146, 152
[1993] and Immuno AG. Moor-Jankowski, 77 235, 244 [1991], cert denied 500 US 954).
However, that some readers may infer a defamatory meaning from a statement does not
necessarily render the inference reasonable under the circumstances. (See eg Ava YP
Holdings, Inc., 64 407, 414 [1St Dept 2009], lv denied 14 702 [2010]; Kramer 
Skyhorse Publishing, Inc, 45 Misc 3d 315, 325 [Sup Ct, New York County 2014] [Jaffe, 

2. Context is key

Words that are challenged as defamatory ?must be construed in the context of the entire
statement or publication as a whole, tested against the understanding of the average reader . . . 
(Aronson, 65 at 594; see 85 at 380; James, 40 at 419-420; Ava,
64 at 413). All relevant factors may be considered in determining whether a word or

statement is defamatory (Farber Je?erys, 33 Misc 3d 2011 NY Slip Op 

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*15 [Sup Ct, NY County 2011], a?d 103 514 [1st Dept 2013], lv denied 21 858,
citing Steinhilber Alphonse, 68 283, 291-292 [1986]), and courts have considerable
discretion in deciding whether a statement is defamatory, guided only by ?the words themselves
and their purpose, the circumstances surrounding their use, and the manner, tone and style with
which they are used . . . (Steinhilber, 68 at 291-292).

As context is key (Thomas H, 18 at 5 84-585; see Brahms Carver, 33 Supp 3d
192, 198-199 NY 2014], citing examples), defamatory statements advanced during the
course of a heated public debate, during which an audience would reasonably anticipate the use
of ?epithets, ?ery rhetoric or hyperbole,? are not actionable (Frechtman, 115 at 106,
quoting Steinhilber, 68 at 294).

3. Opinion

a. In general

The privilege protecting the expression of an opinion is rooted in the preference that ideas
be fully aired. (Davis, 24 at 269, citing Steinhilber, 68 at 289, and Gertz Robert
Welch, Inc, 418 US 323, 339-340 [1974]). It is, thus, well-settled that ?[e]xpressions of opinion,
as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be
the subject of an action for defamation.? (Davis, 24 at 269; Mann Abel, 10 271 
276 [2008]; see Steinhilber, 68 at 289; Rinaldi, 42 at 380; Martin Daily News
LR, 121 90, 100 [15? Dept 2014], lv denied 24 908). Moreover, an opinion cannot
be proved false. (Mann, 10 at 276).

Privileged statements of opinion are either accompanied by the facts on which they are

based, or do not imply that they are based on undisclosed facts. (Gross, 82 at 53-154).

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?When a statement of opinion implies that it is based on unstated facts that justify the opinion,
the opinion becomes an actionable ?mixed opinion?? (Egiazaryan Zalmayev, 880 Supp 2d
494, 503 NY 2012], quoting Steinhilber, 68 at 289), ?because a reasonable listener or
reader would infer that ?the speaker [or writer] knows certain facts, unknown to [the] audience,
which support [the] opinion and are detrimental to the person [toward] whom [the
communication is directed]?? (Gross, 82 at 153-154, quoting Steinhilber, 68 at
290). And ?if the predicate facts are disclosed but are false, such that the disparity between the
stated facts and the truth would cause a reader to question the opinion?s validity,? the statement
may be actionable as a ?defamatory opinion? (Enigma Software Grp. USA, LLC Bleeping
Computer LLC, Supp 3d 2016 WL 3773394, *11 NY 2016], citing Silsdorfv Levine,
59 8, 15?16 [1983], cert denied 464 US 831; see also Parks Steinbrenner, 131 60,
62-63 [lst Dept 1987]).

An asserted fact may be distinguished from a nonactionable opinion if the statement:
(1) has a precise, readily understood meaning, that is (2) capable of being proven true or false,
and (3) where the full context in which it is asserted or its broader social context and surrounding
circumstances indicate to readers or listeners that it is likely fact, not opinion. (Davis, 24 at
271, citing Mann, 10 at 276, and Brian Richardson, 87 46, 51 [1995.]; Gross, 82
at 153; Steinhilber, 68 at 292). The plaintiff bears the burden of proving ?that in
the context of the entire communication a disputed statement is not protected opinion.? (Celle 
Filipino Reporter Enters, Inc., 209 3d 163, 176 [2d Cir 2000]).

i. Precise, readily understood meaning

Words have been characterized as ?imprecise? when they are ?inde?nite and ambiguous?

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(Parks, 131 at 63, citing Ollman Evans, 750 2d 970, 983 Cir 1984], cert denied
471 US 1127 [1985]), and when they ?may mean different things to different people,? and cannot
be proven true or false because of their ?subjective, relative meanings.? (Live Face on Web, LLC
Five Boro Mold Specialist Inc. 2016 WL 1717218, *2 NY 2016]). Thus, in Springer 
Almontaser, the defendant, upon resigning as principal of a school for Arabic language and
culture, and following the plaintiffs? public campaign against it, accused the plaintiffs of, inter
alia, stalking and harassing her. The Court held that because the terms ?stalked? and ?harassed?
had no precise, readily understood meaning, they would be clearly understood by a reasonable

I listener as an expression of how the defendant felt. (75 539, 540-541 [2d Dept 2010], lv
denied 15 713]).

By contrast, in Kaplan Khan, during the course of a prayer meeting, the defendant
called the plaintiff a ?whore? and accused her of ?running a house of prostitution.? The motion
court found that the words had a ?suf?ciently precise meaning.? (31 Misc 3d 2011 NY
Slip Op *8 [Sup Ct, Kings County 2011]).

ii. Capable of being proven true or false

As noted supra, where a statement is subjective and imprecise, it is not
susceptible of being proven true or false. (Live Face on Web, 2016 WL 1717218). Some
statements, however, appear on their face to be capable of being proven true or false, such as in
Davis, where the defendant made statements that the plaintiffs ?made false sexual abuse
allegations? against a coach to get money, and that one of the plaintiffs had done so in the past.
(24 at 271; see also Kamchi Weissman, 125 142, 157-15 8 [2d Dept 2014]

[statements that plaintiff?rabbi failed to: appear for morning services, perform outreach for

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young families, use the traditional prayer book, and lead High Holiday services, etc., found
?thoroughly capable of being proven true or 
Full context or broader social context and surrounding circumstances

?[E]ven apparent statements of fact may assume the character of statements of opinion,
and thus be privileged, when made in public debate, heated labor diSpute, or other circumstances
in which an ?audience may anticipate [the use] of epithets, ?ery rhetoric or hyperbole.?
(Steinhilber, 68 at 294, quoting Information Control Corp. Genesis One Computer
Corp, 611 F2d 781, 784 [9th Cir 1980]). Thus, as with any statement challenged as defamatory
(supra, II.A.2.), the context must be examined in order to determine whether a reasonable reader
would have believed that the communication was fact, not opinion. (Davis, 24 at 270,
quoting Brian, 87 at 51). However, in distinguishing fact from opinion by reference to
?the content of the communication as a whole, as well as its tone and apparent purpose,? the
reviewing court should not pick apart the challenged communication to isolate and identify
factual assertions. (Brian, 87 at 51).

Certain contexts may indicate whether a statement constitutes fact or opinion. An
investigative article in the news section of the New York Times was held to be a context
re?ecting the factual nature of statements reported therein (Gross New York Times Co., 82
146, 155-156 [1993]), whereas a newspaper?s editorial page was found to be a context
indicating that the challenged statement constituted an opinion (Brian, 87 at 53), as was a
letter to the editor of a professional journal (Immuno AG. Moor-Jankowski, 77 235
[1991], cert denied 500 US 954), a public community board hearing (600 W. 115th St. Corp. 

Von Gar?eld, 80 130 [1992]), and communications between a union of?cial and a ?scab?

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during a heated labor dispute (Steinhilber Alphonse, 68 283 [1986]).

In addition, ?[t]he culture of Internet communications, as distinct from that of print media
such as newspapers and magazines, has been characterized as encouraging a ?freewheeling,
anything-goes writing style.? (Sandals Resorts Int]. Google, Inc, 86 32, 43-44 [1St
Dept 201 1] [citation omitted]; see LeBlanc Skinner, 103 202, 213 [2d Dept 2012]
[?Internet forums are venues where citizens may participate and be heard in free debate involving
civic Thus, ?epithets, ?ery rhetoric or hyperbole? advanced on social media have
been held to warrant an understanding that the statements contained therein are ?vigorous
expressions of personal Opinion,? ?rather than the rigorous and comprehensive presentation of
factual matter.? (Brian, 87 at 52 [internal quotation marks and citations omitted]; see
0 ?Mahony Winston, 2016 NY Slip Op *6-7 [Sup Ct, New York County 2016]; see
also Matter of Kom'g WordPress. com, 112 936, 937 [2d Dept 2013] [reasonable reader
would believe that statements made on an Internet blog during sharply contested election
generally referencing ?downright criminal actions? were opinion, ?not a factual accusation of
criminal 

Consequently, ?New York courts have consistently protected statements made in online
forums as statements of opinion rather than fact.? (Bellavia Blatt Crossett, P. C. Kel 
Partners, LLC, 151 Supp 3d 287, 295 NY 2015] [citations omitted]; see Matter of
Woodbridge Structured Funding, LLC Pissed Consumer, 125 508, 509 [1st Dept 2015]
[disgruntled tone, anonymous posting, and predominant use of statements on consumer grievance
website that cannot be de?nitively proven true or false, support ?nding challenged statements

constitute nonactionable opinion]; Sandals Resorts, 86 at 43?44 [so?called social media,

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such as Facebook and Twitter, is increasingly deemed to attract ?less credence to allegedly
defamatory remarks? than other contexts, noting that ?bulletin boards and chat rooms are often
the repository of a wide range of casual, emotive, and imprecise speech?] [internal quotation
marks and citation omitted]; Versaci Richie, 30 648, 649 [3d Dept 2006], lv denied 7
710 [statement about plaintiff made in ?rambling commentary? ?on an Internet public
message board . . . where people air concerns about any matter? was Opinion]; Brahms Carver,
33 Supp 3d 192, 198-199 NY 2014] [statement nonactionable opinion where ?made on an
internet forum where people typically solicit and express opinions? and in context of a ?heated
argument?replete with Biro Conde Nast, 2014 WL 4851901, *4 NY
2014] [plaintiff failed to state defamation claim ?buttressed by the context of the publications in
question: an online website that was essentially a 

Similarly, comments made on television talk shows, given the ?give and take? of the
show, and the ?spirited? verbal exchanges between the host and guest, and the ?at times heated?
?interplay with audience members,? are deemed nonactionable opinion. (Huggins Povitch,
1996 WL 515498, *7 [Sup Ct, New York County 1996]; see Hobbs Imus, 266 36, 37 
Dept 1999] [?in the context of the ribald radio ?shock talk? show? where hosts? ?crude and
hyperbolic manner . . . [became] their verbal stock in trade,? defendants? ?[g]ratuitously tasteless
and disparaging? remarks about plaintiff properly deemed nonactionable opinion]).

A purportedly defamatory statement?s broader social context and surrounding
circumstances must also be analyzed in terms of the content of the statement ?as a whole, its tone
and apparent purpose? (Davis, 24 at 270, quoting Brian Richardson, 87 46, 51

[1995] [other citations omitted]), in order to determine ?whether the reasonable reader would

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have believed that the challenged statements were conveying facts about the libel plaintiff??
(Brian, 87 at 51 [citations omitted]; Davis, 24 at 270; see Guerrero Carva, 10
105, 111-112 [1St Dept 2004]; Enigma Software Grp. USA, LLC Bleeping Computer
LLC, Supp 3d 2016 WL 3773394, *12 NY 2016]).
4. Defamation per se

As pertinent here, a statement that ?suggests improper performance of one?s professional
duties or unprofessional conduct? (Frechtman Gutterman, 115 102, 104 [1st Dept
2014]), or otherwise ?tend[s] to injure another in his or her trade, business or profession? may be
actionable as defamation per se without proof or allegations of special damages (Liberman 
Gelstein, 80 429, 435 [1992]; see Geraci Probst, 15 336, 344 [2010]).
?Reputational injury to a person?s business, or to a company, consists of a statement that either
imputes some form of fraud or misconduct or a general un?tness, incapacity, or inability to
perform one?s duties.? (Enigma Software Grp., 2016 WL 3773394, *18, quoting Van-Go ransp.
Co. New York City Bd. of Educ, 971 Supp 90, 98 NY 1997]). The challenged statement
?must be more than a general re?ection upon [the plaintiff s] character or qualities. . . . [it] must
re?ect on her performance or be incompatible with the proper conduct of her business? (Golub 
Enquirer/Star Group, Inc, 89 1074, 1076 [1997] [citations omitted]), and relate to ?a
matter of signi?cance and importance for that purpose? (Liberman, 80 at 436, citing
Prosser and Keeton, Torts 112, at 791 [5th ed]; see also Kerik acopina, 64 Supp 3d 542,
570 NY 2014]).

Some statements are actionable defamation per se because they discredit one in his

chosen calling, such as

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to say of a physician that he is a butcher . . ., of an attorney that he is a of a school

teacher that he has been guilty of improper conduct as to his pupils, of a clergyman that

he is the subject of scandalous rumors, of a chauffeur that he is habitually drinking, of a

merchant that his credit is bad or that he sells adulterated goods, of a public of?cer that he

has accepted a bribe or has used his of?ce for corrupt purposes . . . .

(Celle Filipino Reporter Enters. Inc. 209 3d 163, 180 [2d Cir 2000]; reppel Biovail
Corp, 2004 WL 2339759, *9-10 NY 2004] [citations omitted]). On the other hand, it has
been held that calling a judge incompetent, accusing a former director of the State Lottery of
?systematically cheating? the public, and describing a teacher who had received unearned pay
while on sick leave as a ?no-show? are nonactionable expressions of opinion. (Trump Chicago
Tribune Co., 616 Supp 1434, 1436-1437 NY 1985] [architectural critic?s negative
statements about plaintiff 5 building constitute nonactionable opinion]).

It is also well-settled that being ?red or removed from of?ce, absent any insinuation of
misconduct, does not imply professional misconduct or incompetence or otherwise impugn an
individual?s integrity. (Aronson Wiersma, 65 592, 594 [1985] [statements that plaintiff
not doing her job and had to be ?red did not defame her in her trade, business or profession];
Nichols Item Publs., Inc, 309 NY 596, 601 [1956] [?one?s removal from of?ce carries no
imputation of dishonesty or lack of professional capacity? and can be defamatory ?only when the
publication contains an insinuation that the dismissal was for some misconduct?] [citations 0
omitted]; Chang Fa?Yun, 265 265, 265 [l$t Dept 1999] [??The mere statement of
discharge or termination from employment, even if untrue, does not constitute libel.??] [citation
omitted]; Dworin Deutsch, 2008 WL 508019, *7 NY 2008] [statements in book that

plaintiff was forced to resign, even if untrue, not defamatory absent insinuation of misconduct]).

A fortiori, professional misconduct, incompetence, or a lack of integrity may not be reasonably

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inferred from being turned down for a job.
B. Contentions

In support of their motion, defendants argue that the statements in question, including
Trump?s statement that she ?begged? for a job and was rejected, constitute hyberbolic rhetoric,
too vague to be defamatory. (N YSCEF 15).

The gravamen of plaintiff?s complaint is that Lewandowski, in a statement made on a talk
Show, and Trump, in two comments posted on Twitter, falsely represented that she had sought a
job from them, was rejected, and thus made biased comments about Trump. (N YSCEF 20, at 15-
16, 20). Plaintiff argues that by these statements, ?[d]efendants, in sum and substance, falsely
declared that [she] sacri?ed her professional integrity to attack defendants when she was denied
employment? (id at 21), and made her ?look terrible? (id. at 14-15).

Plaintiff essentially acknowledges that the statements that she ?went off,? ?was upset,?
and ?went hostile,? constitute nonactionable speculation, hyperbolic rhetoric, and pure opinion?
(Id. at 14). She also does not argue that Trump?s tweeted insults, such as calling her ?a real

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dummy, really dumb,? ?major loser, zero credibility,? are anything other than opinion ?piled
on? to his comments. (Id. at 15).

Rather, plaintiff?s defamation claims are based on defendants? ?deliberate fabrications? of
?what they claim caused her to express the Views she expressed, which was that she begged for a
job and was turned down? (id. [emphasis in original]), and ?then exacted her revenge by
attacking Trump on television? Whether she sought the job and was rejected, she alleges,

constitutes straightforward fact, and the statements that she ?came to us? and ?begged? for a job

and was ?turned down? are false. 

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The truth, plaintiff asserts, is that she met twice with Lewandowski, at defendants?
request, and decided not to pursue the position because of Lewandowski?s rude and
unprofessional conduct during her second meeting with him. These false statements about her,
plaintiff claims, were made in retaliation for her negative comments about Trump, and ?for the
deliberate purpose of impugning her integrity and neutralizing her negative commentary.? 
She states that she not only suf?ciently alleges that ?her standing within her professional world
and in the broader public community would tend to be damaged? by defendants? false assertions
that she was biased against Trump because she was rejected for a job (id. at 20), but also that ?in
fact her professional standing suffered enormous damage, as she became damaged goods no
longer invited by the networks to ply her trade . . . [and] she actually was exposed to hatred,
contempt and aversion, and the libels induced an evil or unsavory opinion of her in the minds of
millions of people? (id. [emphasis in original]).

C. Analysis

Trump?s characterization of plaintiff as having ?begged? for a job is reasonably Viewed as
a loose, figurative, and hyperbolic reference to plaintiff a state of mind and is therefore, not
susceptible of objective veri?cation. (But see California Green, 399 US 149, 158 [1970],
quoting Wigmore on Evidence 1367 [characterizing cross-examination as ?the greatest legal
engine ever invented for the discovery of To the extent that the word ?begged? can be
proven to be a false representation of plaintiff?s interest in the position, the defensive tone of the
tweet, having followed plaintiff?s negative commentary about Trump, signals to readers that
plaintiff and Trump were engaged in a petty quarrel. Lewandowski?s comments, overall, are

speculative and vague, and defendants? implication that plaintiff was retaliating against them for

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turnng her down, notwithstanding the unmistakable reference to her professional integrity, is
clearly a matter of speculation and opinion.

Moreover, the immediate context of defendants? statements is the familiar back and forth
between a political commentator and the subject of her criticism, and the larger context is the
Republican presidential primary and Trump?s regular use of Twitter to circulate his positions and
skewer his opponents and others who criticize him, including journalists and media organizations
whose coverage he ?nds objectionable. (See eg Jasmine C. Lee Kevin Quealy, The 289 People
Places and Things Donald rump Has Insulted on Twitter: A Complete List, The Upshot, NY
Times [digital ed], Dec. 6, 2016, 
[accessed Jan. 8, 2017]). His tweets about his critics,
necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as
?loser? or ?total loser? or ?totally biased loser,? ?dummy? or ?dope? or ?dumb,? ?zero/no
credibility,? ?crazy? or ?wacko,? and ?disaster,? all de?ecting serious consideration. see
Techhovate LLC Fanellz', 49 Misc 3d 1201 2015 NY Slip Op *4 [Civ Ct,
Richmond County 2015] [?On-line speech often is characterized by the use of slang, grammatical
mistakes, spelling errors, and a general lack of Ellyn M. Angelotti, wibel Law:
What Defamation and Its Remedies Look Like in the Age of Twitter, 13 High Tech 430, 433
[2013] [?The informal nature of conversation on Twitter tends to encourage people to talk more
freely about others, including the spreading of rumors and potential 

And yet, the context of a national presidential primary and a candidate?s strategic and
almost exclusive use of Twitter to advance his views arguably distinguish this case from those

where heated rhetoric, with or without the use of social media, was held to constitute

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communications that cannot be taken seriously. (See eg Gerald F. Seib, The Method in Donald
Trump?s Maddening Communications Habits, Wall St. ., Jan. 2, 2017, 
1483 3 77825 [there
?seem to be speci?c objectives behind many of Mr. Trump?s seemingly scattershot missives and
comments,? and that while there is ?danger? in leaving world unsure which messages to take
literally, it is ?also likely Mr. Trump knows exactly what he is doing?]; David Danford, Why
Donald Trump?s Constant Twitter Battle with the Media Is a Brilliant Strategy, The Federalist,
Dec. 7, 2016, 
brilliant-strategy/ [?Trump?s seemingly off?the-cuff and thoughtless tweets are no small part of
this fascinating display of political These circumstances raise some concern that some
may avoid liability by conveying positions in small Twitter parcels, as opposed to by doing so in
a more formal and presumably actionable manner, bringing to mind the acknowledgment of the
Court of Appeals that ?[t]he publisher of a libel may not, of course, escape liability by veiling a
calumny under artful or ambiguous phrases . . . (Nichols Item Publs., Inc, 309 NY 596, 601
[1956]).

Nevertheless, consistent with the foregoing precedent and with the Spirit of the First
Amendment, and considering the statements as a whole (imprecise and hyperbolic political
dispute cum schoolyard squabble), I ?nd that it is fairly concluded that a reasonable reader would
recognize defendants? statements as opinion, even if some of the statements, viewed in isolation,
could be found to convey facts. Moreover, that others may infer a defamatory meaning from the
statements does not render the inference reasonable under these circumstances.

Thus, although the intemperate tweets are clearly intended to belittle and demean

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plaintiff, any reasonable reading of them makes it ?impossible to conclude that [what defendants
said or implied] . . . could subject . . . [plaintiff] to contempt or aversion, induce any unsavory
opinion of [her] or re?ect adversely upon [her] work,? or otherwise damage her reputation as a
partisan political consultant and commentator. (Nichols, 309 NY at 601; see also Fulani New
York Times Co. 260 215, 216 [1St Dept 1999] [statement that plaintiff currently a member
of cult-like political group, which she no longer belonged to, ?could not have had a different or
worse effect on the mind of a reasonable reader than the Indeed, to some, truth itself has
been lost in the cacophony of online and Twitter verbiage to such a degree that it seems to roll
off the national conscioUsness like water off a duck?s back. (See eg arhad Manj 00, How the
Internet Is Loosening Our Grip on the Truth, NY Times, Dec. 2, 2016, 
2016/1 [accessed Jan.

8, 2017] [because there is more media from which to choose, people tend to focus on information
that ?ts their personal opinions or narrative whether or not factually accurate]).

For all of these reasons, I observe, as did the court in Trump Chicago Tribune Corp,
that New York courts have found ?cases present[ing] claims far more compelling than that
advanced by plaintiff here . . . [to] involve expressions of opinion entitled to full First
Amendment protection.? (616 Supp 1434, 1437 NY 1985] [citations omitted]).

Given this result, there is no need to address whether the challenged statements constitute
defamation per se. In any event, while it is not disputed that a campaign employee first
approached plaintiff about the position, a determination of what the parties thought during the
interview process, and why and how the process ended requires inquiry into their subjective

beliefs. Moreover, there is no dispute that after plaintiffs second meeting with Lewandowski,

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neither she nor defendants pursued the matter any further, and she was not offered the position.
Thus, defendants? statements that they rejected plaintiff for a campaign position do not suggest
that she improperly performed her professional duties, engaged in unprofessional conduct, or
otherwise tended to injure her in her profession, that of a political commentator during a
particularly raucous Republican presidential primary.
CONCLUSION

In light of the foregoing, and absent any authority for the proposition that the
circumstances of this case render defendants? statements an exception to what appears to be the
law that they are nonactionable opinion, plaintiff fails to state a claim. Accordingly, it is hereby

ORDERED, that defendants? motion to dismiss is granted, and the complaint is dismissed
in its entirety, and the clerk is directed to enter judgment in favor of defendants.

ENTER:

 

B?arbar??fe, SC

Dated: January 9, 2017
New York, New York

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