“I’m going to sue you.”
Few phrases start more heart palpitations in a student newsroom than that one. Even though, as a good friend once noted, “It ain’t a lawsuit until it’s filed,” the sense that someone is coming after you with the full force of law can be terrifying. If you spend enough time in any part of the media field, you will likely hear that phrase and have it pointed in your general direction.
The student newspaper at Tufts University had that experience recently, thanks to a few columns written about a famous, outspoken alumnus: Anthony Scaramucci.
Scaramucci spent 10 days as the White House communications director under President Donald Trump. During that time, his wild ride included an off-color interview with the New Yorker, that disparaged several former colleagues and eventually led to his downfall. Scaramucci is also an alumnus of Tufts University where he served on an advisory board for the university’s law school. Graduate student Camilo A. Caballero penned several opinion pieces for the Tufts Daily, arguing that Scaramucci shouldn’t hold that position.
Scaramucci, a 53-year-old, Harvard-educated lawyer with an impressive background in financial success, decided the best course of action was to threaten a lawsuit against the author and the paper, unless an apology was issued and the content was retracted.
Caballero has referred all questions to the folks at the ACLU with whom he is working, but Gil Jacobson, the editor-in-chief of the paper, was nice enough to exchange a few emails with me on the topic.
Jacobson said he first heard rumblings about Scaramucci’s board position in October, and The Daily ran a news article on the topic in early November. Around that time, the paper ran two of Caballero’s columns as well. On Nov. 20, he said the paper covered a session between administrators and concerned community members of the Fletcher School of Law and Diplomacy. The cease-and-desist letter came the next day.
“I spoke on the phone with a lawyer from Student Press Law Center last week, and based on the information he gave me, we decided to print the cease-and-desist letter today and keep the original op-eds online in their original text,” Jacobson said in an email to me early last week.
In the mean time, all of the content pertaining to the Scaramucci situation remain online via the paper’s website.
“I have the final say as far as potential retractions and apologies go,” Jacobson said. “The op-eds remain online in their original text, and we’ll just have to wait and see where things go from here.”
Since that set of emails, Scaramucci has resigned his position from the board, he has not retracted his request for the paper to “unpublish” its content and the ACLU has helped craft a response to Scaramucci’s demands. In addition, in defending his honor against the commentary of a 26-year-old law school student who is writing for a college newspaper, Scaramucci got the Washington Post, New York Times and Boston Globe to shine a light on everything Caballero accused him of being and doing. When I touched base with Jacobson for a brief follow up on this, he remained pretty even-keeled:
“With anything we publish, we must be prepared for the full scope of outcomes to occur, no matter how severe. Words have consequences, just like actions,” he said. “We’ve seen this happen this week with Mr. Scaramucci, as well as many other cases involving journalists.”
This situation has about 91 things you can learn from it as a journalism student, not to mention at least 112 more amusing moments you can enjoy. (My personal favorite is the ACLU’s examination of this statement:)
Statement 3: “[T]he man who sold his soul in contradiction to his own purported beliefs for a seat in that White House”
Mr. Caballero’s statement about Mr. Scaramucci’s selling of his soul is both a constitutionally-protected statement of opinion and a statement that is not actionable because it does not contain objectively verifiable facts. See Scholz, 473 Mass. at 250. The “contradiction” underlying this purported sale is of course well- documented; Mr. Scaramucci appeared to change his prior positions when he accepted his White House appointment. But the purported sale is an idiom meant to express an opinion about Mr. Scaramucci’s integrity, and it cannot be proved true or false. Your client clearly understands the idiom; he has in fact devoted a book to it.
That said, the best teachable moment to come out of all this is how to react when someone, even a rich-and-famous someone, threatens to sue you:
- Remain calm: The threat itself is enough to freak you out, but when you are nervous for no reason, you can make the most (and largest) mistakes. You need to realize that the threat of a lawsuit is just that: A threat. Take the threat seriously enough to gather crucial information and speak with the person involved, but remember, it is highly unlikely that the person will sue you at all, let alone sue you successfully.
- Determine the problem: Just because someone doesn’t like something, it doesn’t necessarily follow that they have grounds for legal action. In one of the earlier articles on this topic, this was a key point legal experts were making: Just because you don’t like something that someone wrote, it doesn’t necessarily follow that libel or defamation has occurred. In the case of the Scaramucci letter, it was inordinately clearly what he and his legal team felt the problem was, so that made it easier for the newspaper staff to figure out how to proceed. In other cases, people are just generally angry, so you need to keep the dialogue flowing until you can zero in on exactly what happened and why this is so troubling to the angry person.
- Don’t make a promise you can’t keep: A “fight or flight” instinct is pretty strong in most folks. When a person threatens you, the “flight” instinct to apologize profusely and promise to fix everything might feel like the best way to handle a situation. On the other hand, you might feel the need to “fight” the situation with some anger and vitriol of your own. Neither of these instincts tends to work out all that well when you are dealing with angry readers. The best thing you can do is work the situation like a reporter: Gather facts and opinions from this person, do some research digging and then come back with an answer when you feel fully informed. In some cases, those answers won’t even come from you, but rather a legal representative or someone higher up the food chain at your place of work. In either case, don’t back yourself in a corner out of fear.
The staff of the Tufts Daily seemed to nail this approach perfectly. It should be interesting to see what happens next.