Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!
—Donald Trump tweet, Feb. 5, 2016 (Tweet that prompted Cheri Jacobus to sue for libel)
The president is very pleased with this decision. He believes that justice was served.
—Trump lawyer Lawrence Rosen, Dec. 12, 2017 (after Cheri Jacobus lost an appeal of her libel case)
THE TIMES’S FIRST libel suit of the Trump era showed up in May 2017. For months, people in the media and in legal circles had been anxiously predicting that libel suits would once again be the litigation weapon of choice for well-heeled conservatives hoping to inflict pain on the liberal media they despised. And why not? Trump’s toxic incantation of “fake news,” his own long history of threatening libel suits, the weakened financial state of legacy media—these were ripe conditions for politically tinted libel suits. And the first one to come could not have been more infused with the flavor of Trump. The plaintiffs were six coal companies that had one thing in common: they were all owned by Bob Murray, the coal baron whose enthusiasm for a president who loved, loved, loved coal mining knew no bounds.
The Murray suit was pinned to an editorial that The Times wrote about Murray and other big-dollar contributors to the president’s inauguration. The Murray suit, filed in coal-friendly West Virginia, was a throwback to old-time libel lawsuits when the rich and powerful summoned their lawyers at the first sign of unfavorable press. The Times editorial, published in April, had raised questions about the rich people who financed the inaugural events and whether they expected some help from the new administration on the back end with federal regulations they would like to see stricken from the books—among them, those annoying regulations about health, safety, and the environment for coal mining. One paragraph dealt with Bob Murray. It mentioned that Murray Energy is a “serial violator of federal health and safety rules” and then noted that Bob himself had “falsely insisted that the 2007 collapse of his Crandall Canyon mine, which killed six workers, was due to an earthquake.”
The Murray companies did not deny that they had racked up their share of federal health and safety violations, but they were unhappy with the label “serial violator,” which they said made it sound as if they were the worst companies in the industry when in fact their dreadful record was just like the dreadful record of every other coal company—sort of the “we’re all serial violators here” defense. Crandall Canyon was more complicated. At least two major investigations had concluded that the mine collapse was not caused by any earthquake—the federal government determined that the disaster was caused by unauthorized mining practices—although, yes, there was seismic activity in the area that tragic day. Even Murray’s lawyers stopped short of saying that it was an actual earthquake, instead opting to say that the mine collapse was caused by “something that is commonly understood as an earthquake.” As The Times’s feisty West Virginia lawyers Holly Planinsic and Bob Fitzsimmons pointed out to the court, “something that is commonly understood as an earthquake” is by definition not really an earthquake. Lest there was any doubt about the larger context of the suit, Murray’s complaint reprised that The Times had endorsed Hillary Clinton and broadly suggested that may have been the source of the problem with the editorial. A company press representative apparently concerned that the connection was too subtle issued a statement: “The New York Times, of course, supported Hillary Clinton, who famously declared her agenda to ‘put a lot of coal miners and coal companies out of business.’ Murray Energy instituted this suit, in part, in [an] attempt to ensure that such an agenda is not furthered by The New York Times’ false and defamatory statements.”
Shortly after our editorial ran, HBO’s brilliant comedian John Oliver decided to do a tribute to Bob Murray, or, as Oliver called him, “a geriatric Dr. Evil.” Oliver marched through the Murray companies’ woeful record on safety and health and reprised an incident in which Murray miners, offended by the paltry bonus checks they received, returned them to the company with “Eat shit, Bob” and “Kiss my ass, Bob” scrawled on them. Oliver’s big finish came when a giant squirrel named Mr. Nutterbutter appeared. (Inside joke: there were rumors that Murray had decided to start his company after a squirrel advised him to do so.) The squirrel then announced, “Hey, Bob, just wanted to say, if you plan on suing, I do not have a billion dollars. But I do have a check for three acorns and eighteen cents. It’s made out to, ‘Eat shit, Bob!’ Memo line: ‘Kiss my ass!’”
Murray was not pleased. Which was how we came to have HBO as a travel companion on our voyage through the West Virginia judicial system, each of us facing separate Bob Murray defamation suits. The Times moved to dismiss the case—we were confident that our statements about Murray happened to be true—and HBO did the same. It was then that Jamie Lynn Crofts showed up. Jamie Lynn Crofts is the legal director of the American Civil Liberties Union in West Virginia. She wanted to know whether she could file an amicus brief in our case and HBO’s to help make the point that Murray’s libel lawsuits should be dismissed. Briefs have a long and distinguished place in American legal history. They are, at their apex, dispassionate explications of complex legal principles, filled with careful citations to binding legal precedents and finely crafted logical arguments. Safe to say that there had never been a brief quite like the one that Jamie Lynn Crofts and the ACLU wanted to file. One of the headings proclaimed: “Anyone Can Legally Say, Eat Shit, Bob!” Elsewhere it opined that it was “apt that one of Plaintiffs’ objections to the show is about a human-sized squirrel named Mr. Nutterbutter, because this case is nuts.” It went on to lay out a fundamental principle of American libel law: “You Can’t Sue People for Being Mean to You, Bob.”
It was a great brief. It was unmistakably right about the First Amendment. Defamation suits can’t be based on insults or opinions or hurt feelings. Plaintiffs must instead prove that there is a factual error that harmed their reputation. More than that, the ACLU brief said all those delicious things that lawyers usually wish they could say about the people who sue their clients—and then, lawyers being lawyers, don’t say. Of course, sometimes The New York Times can’t help but be The New York Times. Which is why I got on the phone to tell Jamie Lynn Crofts that we would appreciate it if she did not file her brief in our case. It was hilarious, it was irreverent, it was laced with obscenities. In other words, it was everything The Times was not. We worried that it would be a distraction in our case, which after all was based on two passing factual sentences in a decidedly unfunny and sober-minded editorial. John Oliver’s bit was fantastic, but we didn’t want the courts to see our editorial as one piece in some broader no-holds-barred takedown of Bob Murray. The ACLU filed its brief only in the HBO case. We went it alone.
Upon reflection, that may not have been the smartest legal calculation of my life. Maybe Jamie Lynn’s brief had nothing to do with it, but the sad reality is that in the HBO case the judge dismissed Murray’s lawsuit while the judge in our case decided that the case should proceed to further fact-finding on whether our two statements were true. The unmistakable message: the First Amendment protected Mr. Nutterbutter saying “Kiss my ass” and “Eat shit, Bob”—those were clearly not statements of fact—but was not so certain about our calling Murray’s business a “serial violator.” That actually makes sense in the law of libel, no matter how screwy it may sound to the world at large, or how unhappy it made me.
Even before Trump’s drum-banging about the need to make it easier to sue, libel had become an unavoidable topic of news coverage, public conversation, fretting, and, now and then, confusion. For years, libel had been largely off the radar, with few high-profile suits being brought. Then Rolling Stone magazine had been sued for a botched 2014 article telling the story of a University of Virginia undergraduate who said she was raped at a fraternity party. Following publication, huge holes were found in the tale provided by the undergraduate—identified only as Jackie in the story—and Rolling Stone found itself on the wrong end of a libel suit brought by a university dean mentioned in the article (a jury in 2017 awarded her $3 million, an amount later reduced by settlement), the fraternity (the magazine settled for $1.65 million), and three members of the frat (the case was settled confidentially). ABC, which had reported extensively on what the network called “pink slime”—an unappetizing meat product sold to school cafeterias and restaurants—was sued by a meatpacking company that claimed the ABC stories made the product sound unsafe. In midtrial in 2017, ABC settled. The full amount was not disclosed, but public filings by ABC show that it was more than $177 million, and maybe a lot more, an amount never before seen in American libel litigation. Buzzfeed, the cheeky online news outlet, became a magnet for libel litigation when it published the infamous “dossier”—the compilation of research done by a former British spy about the connections between the Trump campaign and the Russians, including the over-the-top allegation that the Russians had a tape of Trump frolicking with prostitutes in a Russian hotel. At a January 2017 press conference, just after the publishing of the dossier, the president-elect deemed Buzzfeed “a failing pile of garbage.” Buzzfeed responded by selling “Failing Pile of Garbage” T-shirts. Less funny for Buzzfeed was the libel suit that followed, not from Trump but from a Russian businessman named Aleksej Gubarev, who was mentioned in the dossier. A Russian bank followed with its own suit against Buzzfeed over another section from the dossier. Then came a libel suit from a particularly unlikely source, Trump’s personal lawyer, Michael Cohen, another person cited in the dossier. The wheels soon fell off that case when Cohen sank into his own deep well of legal problems, finally hitting bottom with a guilty plea to eight crimes. Buzzfeed aggressively fought back against all the suits.
Inevitably, the conversations about the resurgence of libel claims swept in the lawsuit brought by professional wrestler Hulk Hogan (real name: Terry Bollea) against the scandalmongering website Gawker, although it wasn’t a libel suit. It was an invasion-of-privacy case, born of Gawker’s decision to play some highlights of a video showing Hogan having sex with his best friend’s wife, shot in the woman’s bedroom. Hogan said he was emotionally ruined when the video was aired, despite his frequent bragging on radio shows (including one hosted by the best friend whose wife was in the video) about his sexual prowess. Gawker said the video was newsworthy. A jury in St. Petersburg, Florida, said Gawker should pay Hogan $140 million. The verdict forced Gawker out of business and into bankruptcy. Hogan settled for $31 million. But one of the more shocking parts of the whole sad saga was the disclosure after trial that Hogan’s lawsuit had been financed by a Silicon Valley billionaire, Peter Thiel, whose animosity toward Gawker came, at least in part, from a 2007 story on a Gawker website headlined “Peter Thiel Is Totally Gay, People.” Convinced that his personal life was nobody’s business and Gawker was an online menace, he began secretly funding the legal fees of people with lawsuits against Gawker.
The idea that billionaires were using their riches to attack media companies they did not like was unsettling. It was easy to conjure up dark visions of America’s plutocrats—tired of spending their mountains of cash on seaside mansions, impossibly large yachts, and third or fourth wives—turning their impatient attention to breaking the backs of America’s media companies with punishing litigation. Only the picture was not that simple or clear. For one thing, litigation financing was usually not illegal and in fact had been viewed as a protected First Amendment activity by none other than the U.S. Supreme Court at the height of the civil rights movement. In the early 1960s, Virginia had passed a law aimed at preventing the NAACP from financing civil rights suits brought by individuals victimized by discrimination. The court struck down the law as unconstitutional, finding that the funding of litigation was a protected form of speech. The funding of frivolous suits, designed not to rectify a wrong but instead to inflict hurt on a defendant, was a different matter, but the line between a long-shot lawsuit and a frivolous one is often undetectable, at least in the eyes of many judges. And supporters of Hogan and Thiel pointed out, accurately, that most media companies carried insurance to cover their fees in libel and privacy cases. They saw litigation funding for plaintiffs as a leveling of the playing field. Of course, there was one difference worth thinking about: publishers were required in most courts to disclose right away whether they had insurance policies to cover the case. That seemed very different from the shadowy world of private litigation financing, where typically no one other than the plaintiff—not the judge, not the defendant, not the public—knew whose bankroll was behind the case. It lent itself to a system in which marginal cases would be kept alive for political reasons, reasonable settlement offers would be rejected, and litigation strategies aimed at running up the other side’s costs rather than getting at the truth (or even just winning) would be the norm.
It was hard to know what to make of the Gawker verdict itself, though. The case was an outlier in many ways. The testimony of Gawker’s witnesses had been deplorable. The case was tried in St. Petersburg, Florida, Hogan’s home turf, where he was a hero. Had Gawker been properly insured and able to go forward with the litigation, the case would likely have been won on appeal. Privacy cases are rarely brought and almost never won. Publishers are able to prevail, even when a disclosure is salacious and offensive and tasteless (that would be any video showing Hulk Hogan having sex with anyone under any circumstances), if the publishers are able to establish that their publication was “newsworthy” or in the “public interest.” Courts are reluctant to second-guess editors’ decisions about what constitutes news and what the public needs to know. Right after the Gawker verdict, The Times published a piece quoting media lawyers as saying the verdict in the case was wrong and regrettable but predicting it did not mark the start of a trend—that is, this is no big deal. Gawker’s general counsel and I engaged in a polite back-and-forth one night at a bar association meeting about whether that was so. Later, a couple of lawyers for tabloid news sites confided in me that the real problem was that Gawker “didn’t know how to do sex tapes.” As this was not an area of legal expertise I had spent much time on during my career at The New York Times, I admitted to a certain curiosity about how “to do sex tapes.” The playbook, it turned out, was this: A website should first say in a story on day one that Mr. Celebrity was having an affair with Ms. Other Guy’s Wife but not go to the videotape. Then when Mr. Celebrity denounced the report as scurrilous fiction and claimed nothing was going on, the website could then unleash the video evidence on day two, which was of course now extremely “newsworthy” and totally in the “public interest” to put to rest the raging and consequential controversy over whether Mr. Celebrity was an adulterer or not.
For those who believed that libel suits were going to be weaponized by conservatives, the theory ran like this: Put aside the idea that American libel law is set up to protect the publishers and make it difficult for libel plaintiffs to win. Not only was the president filling the federal bench with conservative judges, his “fake news” message seemed to be resonating with some portion of the public. Jury pools were going to be drawn from the same population that was being tracked by pollsters. If 45 percent of the people thought that the press willfully told lies about the Trump administration, no one should be surprised if juries doubted evidence showing that an error made by journalists was a good-faith mistake and not part of a plot to get somebody. Jurors who thought they were sitting in judgment of the enemy of the American people were not likely to give journalists the benefit of the doubt. All of that made the idea of suing seem less like a hopeless long shot and a lot more like a viable alternative for people who were unhappy with the media, or unhappy with their coverage in the media, or just unhappy.
In the four years prior to Inauguration Day, only four libel suits had been filed against The Times (if you didn’t count the occasional loony tunes filings by pro se litigants). We had been seeing the downward trend for years. We liked to think that the drop-off in suits was the result of our policy of not paying money to defendants to settle libel suits against the newspaper in the United States. (The Times Company had paid on fairly rare occasions to settle cases for its other publications and in lawsuits brought abroad.) The no-pay model had been a Times policy dating back to the 1920s. In 1922, Adolph Ochs, the publisher of The Times and great-great-grandfather of the current publisher, wrote in a letter:
I would never settle a libel suit to save a little money. If we have damaged a person, we are prepared to pay all he can get the final court to award, and we accept the decision as part of the exigencies of our business. I am aware that in some cases this may cost us more than necessary, but in the long run I think it is a wise policy.
The truth was that no one knew what was driving down the numbers. Nothing dramatic had changed in the law or the nature of the legal system over the preceding decade. Maybe plaintiffs’ lawyers were just catching up with how hard it was to win a libel suit (The Times Company had not lost a U.S. libel case over a New York Times article in decades) and how much work was involved. A lawyer’s time was better spent on a decent car crash or a good slip-and-fall. Even libel suits from abroad had tapered off. The internet in the late 1990s and early 2000s pushed us into foreign countries, and then into foreign courts, and at one point in 2009 we had eight cases pending abroad, including in countries like China and Iraq and Indonesia, whose legal systems ranged from incomprehensible to unfair and permanently broken. Then those foreign suits disappeared, too. Over a stretch from 2009 to 2017, we had only one foreign libel suit, brought in Russia by one of Putin’s cronies. Perhaps it goes without saying: we did not win.
Then in May 2017, just months after Trump took office, Murray’s suit against The Times landed. Three days later, an Ohio State University professor sued us over a story about a controversy that had broken out over the accuracy of his cancer research. While not political, the complaint plunged headfirst into the fight between the Trump administration and the news media. After dozens of pages claiming the story was false, the complaint veered and made sneering reference to the ad campaign that The Times had launched in response to Trump’s attacks. “The Times was in the midst of a massive marketing campaign, rolled out in January of 2017, positioning itself as a warrior for truth, with such taglines as: Truth. It Is Hard to Find.” Then, barely five weeks later, another libel suit was lodged, this one by Sarah Palin, the conservative icon and former Republican vice presidential candidate. The suit arose from a less-than-clear editorial hastily written about gun control following the shooting attack on congressional Republicans at a baseball field in Virginia. Palin claimed that the editorial blamed her political advertising for prompting Jared Loughner to shoot Congresswoman Gabrielle Giffords in 2011 during an appearance at a shopping center in Tucson, Arizona. Papers served by Palin’s lawyers made clear that they wanted to use the case to investigate not just the writing of the editorial but whether there was a wide-ranging bias against Palin and other conservatives throughout The Times.
To have three libel suits in seven weeks to start 2017 felt ominous in the midst of the president’s regular carpet-bombing of the press on Twitter, the discouraging poll numbers on trust in the media, and the administration’s frightening embrace of the notion that there were “alternative facts.” A couple of years earlier, I had worked on a pro bono project in Montenegro with a newspaper that was in open warfare with a government devoted to silencing the independent media. The government’s tactics were familiar anywhere autocratic regimes flourish—random violence against journalists, government financing of favored news outlets, the demonizing of independent journalists by top officials in the government, questioning their loyalty and patriotism. Libel lawsuits were an essential tool of oppression, too. I asked the editors at the Montenegro newspaper about the current status of libel suits brought against the paper. They pulled out a huge spreadsheet filled with some 25 cases. In the spring of 2017, back in America, I wondered whether that was the new normal we were heading toward.
Whether you thought that the press was under siege from runaway libel suits or whether you were in the “it’s too soon to say” camp, the problem in spotting any trend was the same. It was the problem of small numbers. Not many libel cases are ever filed. If a paper has two libel cases one year and four the next, the urge to say that libel suits have shockingly doubled in just one year’s time was strong—and media lawyers were nothing if not alarmist—but maybe upon honest reflection we were talking about a strange fluke rather than the end of a free press as we know it.
Before Murray and Palin, as the number of Times libel suits declined over the previous two decades, cases brought by the rich and powerful had been the rarest of exceptions for us. Their lawyers wrote letters by the pound. The threat letter was pretty much a cottage industry among Beverly Hills law firms with Hollywood clients who seemed to faint at the utterance of an unkind word in a review. But the lawyers on the other side knew what we knew: Unless something had gone seriously wrong inside The Times, the law gave them little shot of winning. They would have to prove not just that the story was false and defamatory but that The Times had acted with actual malice—meaning, for all intents and purposes, that we knew the story was wrong and published it anyway. Good luck with that. We always worried more about the lawsuit brought by the minor players who wandered through the bottom halves of stories. They tended to be private individuals, and therefore the law made it easier for them to win—and at times coverage of them was a little thin or lacking in context. They sometimes sued not because something was actually wrong but because of what you might think of as the “Google effect.” They were mentioned in stories about real villains, and they now faced a life sentence of being permanently associated on the internet with those bad guys. Every time someone did a Google search for their names, no matter how innocent their own behavior had been or how remote their connection to the real subjects of the piece was, up would pop the article.
When I came to The Times in 2002, the “little guy” lawsuit was a staple of my work, thanks to the company’s ownership of a group of smaller newspapers and broadcast stations in local markets. They generated the kinds of lawsuits that spoke to close-to-the-ground local journalism: the TV report that ran the security-camera picture of a woman using a stolen ATM card, only it was the wrong woman (we blamed the police for giving us the wrong video); the lawyer-turned-fringe-congressional-candidate who was called a “dope” and a “birther” in online reader comments (he claimed he never said that Obama was born abroad, only that he just wasn’t sure); the family that made low-rent commercial videos of young women in bikinis fighting but were described as “pornographers” in the paper (not exactly a film genre that has captured America’s imagination). One of our papers managed, incredibly, to be sued over a picture of a small child on Santa’s lap. The picture was taken at a community party for needy children, only the kid in the photo wasn’t actually needy, nor was her mother, with whom she lived. The girl had been brought to the charity party by her divorced and lamebrained father who wangled his way in for some no-cost entertainment for the kid on dad’s weekend.
But now it was Sarah Palin and Bob Murray. The Palin case, like Murray’s, had its roots in an editorial. On the morning of June 14, a gunman opened fire on Republican congressmen as they practiced at a Virginia ball diamond for a charity baseball game. That evening, The Times went online with an editorial condemning the violent rhetoric that had infected politics and pushing for stricter gun control laws. The editorial included two paragraphs about Palin:
Was this attack evidence of how vicious American politics has become? Probably. In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs.
Conservative and right-wing media were quick on Wednesday to demand forceful condemnation of hate speech and crimes by anti-Trump liberals. They’re right. Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.
Social media lit up minutes after the piece went live. There was no proof that Loughner had ever seen the Palin campaign ad, which showed Giffords’s congressional district in crosshairs. The sentence referring to “incitement as direct as in the Giffords attack” became a lightning rod. Editors at The Times quickly concluded that they needed to fix the piece. The next morning The Times published a correction and revised the language of the editorial. Thirteen days after the editorial came out, Palin filed a libel suit claiming that her reputation had been sullied and that she had been financially damaged by The Times’s piece.
Whatever the merits of the case, the fact that Sarah Palin, a darling of the Trump movement, was suing The New York Times, that bastion of all things liberal, was too rich of a story line for anyone to ignore, on the right or on the left. The right saw their champion giving The Times its long-overdue comeuppance. Palin had just been photographed wandering the halls of the White House with Kid Rock, mocking a portrait of Hillary Clinton. On the other end of the political spectrum, it was taken as further evidence that Trump’s cronies were intent on lashing and silencing The Times with burdensome lawsuits, envisioning a world in which Fox News was ascendant, one more step on the path to the complete Foxification of America.
The judge, Jed Rakoff of the Southern District of New York, had other ideas. He dismissed the case, finding that Palin could not credibly allege that The Times had acted with reckless disregard of the truth in making the error, the standard that Palin needed to meet as a public figure. As Rakoff saw it, the notion that The Times had intentionally published a falsehood about Palin made little sense, not when the correction came so quickly, when The Times in a news article—on the very same day—reported that there was no evidence linking the shooter Loughner to the Palin political ad, when no reasonable person could have thought that a misstatement about Palin in a paper as closely read and critiqued as The Times would slide by unnoticed. It looked to the court more like an honest mistake, and Palin would need to show more than that if she hoped to win her case.
Palin appealed and in 2018 the case continues to wend its way through the federal court system. Meanwhile, the Murray suit was settled without payment.
As it turned out, after getting those first three libel cases, the old calm returned, at least for the time being. Over the rest of the year, only one more libel suit was filed, more or less par for the course, a case brought by a Florida professor with strong objections to a story we had done two years earlier about his involvement in the controversy over genetically modified food.
Trend or no trend, Trump himself was still in the defamation lawsuit game in 2017. Just not in the way you would expect. Over the course of his life as a real estate tycoon, gambling magnate, and reality TV star, he couldn’t seem to stop himself from threatening to sue people for defamation—it was like some sort of strange tic—and, on rare occasions, he actually followed through. But in January, with his inauguration just a few days away, a New York state court was weighing in on a decidedly different type of Trump libel case—one in which he was the defendant, accused of having been the defamer rather than the defamed. Trump won, but the decision in his favor was much more than just another court victory. He and his lawyers had become legal trailblazers of sorts, arguing that nobody but a pea-brain would come to Twitter expecting to find … well, the truth. Yes, Donald Trump had become a First Amendment pioneer.
The court case had its roots in a dust-up between then candidate Trump and Cheri Jacobus, a Republican strategist who doubled as a CNN talking head during the presidential campaign. She regularly used her CNN gig to say things about Trump in 2015 and 2016 that ranged from unkind to unflattering and back again. What happened next is not surprising. What happened next is that Donald Trump pulled out his cell phone and gave Cheri a Twitter beating. He pronounced her “really dumb” and a “major loser” and suggested she was honked off because she had “begged” his campaign for a job and been turned down. She declared that the tweet was untrue, damaged her emotionally, and scarred her reputation—all of which is to say she sued Donald Trump for libel.
She soon ran headlong into Trump’s “Hey, It’s Just Twitter” defense. To be the subject of a legitimate libel suit, the offending statement has to be a statement of fact that is inaccurate. Statements of clear opinion, hyperbole, name-calling, loose and colorful language, rank speculation, insults—they may sting, they may inflict emotional distress and hurt the person’s standing in the community, but they are not libelous if reasonable readers would not take them to be factual statements. To be libelous a statement has to be false, and there is no such thing as a false opinion (dumb, misguided, crass, uninformed, yes, but never false).
In moving to dismiss the case, Trump’s lawyers framed the anti-Jacobus tweet as a textbook example of opinionating, protected by the First Amendment. The judge agreed. Taking her star turn as a literary critic well schooled in the genre known as Trumpian Tweets, she showed a deep appreciation for the author’s style: “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 deflecting serious consideration.” And then she cast a critical eye on Twitter itself. She doubted whether people anywhere should be saying that they saw something on Twitter and believed it to be factual. “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 consciousness like water off a duck’s back.” If no reasonable person could expect to find anything approximating facts in the cesspool of hate, lies, and insults that Twitter had become, it was pretty much a libel-free zone, a place where anyone could say just about anything about anyone without fear of a libel suit. The judge conceded that Trump’s motive was “to belittle and demean” Jacobus—not nice, and thoroughly unbecoming, but, more to the point, not the stuff of a libel claim. If there was no statement that could be reasonably read to convey facts, there could be no falsity, and that meant there was no libel case.
When the decision was handed down, Jacobus’s lawyer declared it “a sad day for freedom of speech, a sad day for the First Amendment, and a sad day for democracy.” In other words, he got it completely backward. It was actually a pretty good day for the first two, and the judge was hardly to blame for the third. Every day tends to be a sad day for democracy on Twitter. But the blame is properly placed in large measure on Twitter itself, which stands like a man on the edge of his lakefront property, hands firmly in his pockets, shrugging, as his lake fills with raw sewage, dead fish floating to the surface. The disappointment of Jacobus’s lawyer was understandable (a lawyer who doesn’t hate losing is a lawyer not worth hiring), and he did have his finger on a problem. Somebody should do something about Twitter to make it what it could be and should be—a voice for common people to speak out in astonishing numbers on the issues that divide and unite a country—but trying to get judges to limit free speech and dictate which opinions are permitted to be heard and which are silenced is not the way to get there.
There was other news on the libel front, as well. A few days before Trump’s inauguration, word arrived that Alexis “Magic Alex” Mardas had died. Some people remembered Magic Alex as a friend of John Lennon’s, a member of the Beatles’ posse in the 1960s, the former TV repairman who epically failed at designing the recording studio for Apple Records. He was the inventor of the “Nothing Box,” a small plastic box with randomly blinking lights that Lennon would stare at for hours while on LSD. Mardas purportedly told the Beatles that he was working on a sonic force field that Ringo could use in place of baffles, wallpaper that would transmit sound, and paints that could make things invisible or be turned different colors with a switch. He later denied having said such things. In British design circles, though, his fame lives on in the term the “Mardas Gap,” which is the “distance between the idea of something and its manifestation.” I knew Magic Alex only as a guy who sued The New York Times for defamation in 2008.
The tale of Magic Alex’s unhappiness with The Times started with the death of Maharishi Mahesh Yogi in 2008. The maharishi had been the Beatles’ spiritual guru 40 years earlier, and in 1967 John, Paul, Ringo, and George had traveled to the maharishi’s ashram in Rishikesh, India, along with a collection of hangers-on, including Magic Alex. Things did not go well, and the Beatles abruptly ended the pilgrimage and broke with the holy man. There had been rumors of sexual improprieties involving the maharishi and female followers. When the maharishi died in 2008, The Times marked his passing with an essay tracking his influence on the Beatles’ music. It included this passage:
In the years since Lennon’s death, in 1980, Harrison and Mr. McCartney reconsidered the accusations against the maharishi. Mr. McCartney has noted that the rumors of sexual impropriety were raised by Alexis Mardas, a supposed inventor and charlatan who had become a Beatles insider. “Magic Alex,” as he was known, had agendas of his own, and may have fabricated (or at least exaggerated) the story. (Mr. Mardas has never commented on the incident.) During the 1990s both Harrison and Mr. McCartney were suitably convinced of the maharishi’s innocence that they reconciled with him and offered apologies.
In the days after the story was published, Mardas not only “commented on the incident” but sued The Times, first in England and then in Greece, where he lived on an island in retirement. He took exception with the account of the rumormongering and bridled in particular at the description of himself as a “charlatan,” a word that apparently is particularly unflattering in both British English and Greek. Mardas protested he was no “supposed inventor” but in fact the holder of scores of patents. (One of his most famous productions was a model of armored car that was sold to various royal families, but which blew up on at least one occasion when tested under live fire by the royal purchaser’s security staff.) Magic Alex asserted that our account of his scheming in India and his record as an inventor was false and defamatory.
The case was complicated under the legal rules of Great Britain and Greece. In a complete reversal of the law in the United States, where plaintiffs must prove that a statement is false, the law abroad required The Times as the publisher to prove our account of Magic Alex was true. Our lawyers gamely traveled around the U.K. and the U.S. interviewing aging rock stars and Beatle pals, hoping to find some friendly witnesses to the events of 1967. The combination of age, 40 years of passed time, and brains fogged by decades of dope-smoking proved challenging. I finally met Magic Alex a couple of years into the litigation when he and I and our small armies of Greek and English lawyers met in Athens for a mediation session to try to settle the two cases. At lunch, our hosts had planted toothpicks with tiny flags of Greece, England, and the United States in the sandwiches. The morning had been unproductive but civil enough (depending on how you feel about listening to English lawyers bicker). At lunch I learned that Magic Alex had managed to invite all of my U.K. lawyers to come visit him on his Greek isle. He had not invited me. When the afternoon session commenced, I spoke to him directly for the first time. There were often hard feelings in any litigation, I told him, we all had to accept that, but the one thing that was truly inexcusable in his case was his failure to offer me a chance to visit him on a Greek isle. It was a breakthrough moment. The tension dissipated. Progress was finally made. We reached an agreeable resolution of the Greek case and the English case—and Magic Alex assured me that I could come visit him any time I wanted in Greece.
I never made it. But I always had a soft spot for Magic Alex. His passing in the early days of 2017 made me nostalgic. Maybe it was just the craziness of his case, his magic psychedelic-sixties life, his connection to the Beatles, his wacky inventions, the thought of his armored cars blowing up in the middle of the Jordanian desert on the first test run. I don’t generally expect to feel that way about the people who sue The New York Times. Magic Alex’s case was difficult, but it was not freighted with political overtones or just one more skirmish in some polarizing cultural war. He was just a guy who thought we got a story wrong and felt he needed to sue to remedy that. That seemed far removed from where we were with the latest libel cases.
I am pretty certain that Bob Murray and I won’t be visiting any Greek isles together any time soon.