Trump v. O’Brien, ___ N.J. Super. ___ (App. Div. 2011). Donald Trump normally enjoys publicity. Tim O’Brien, a financial reporter, wrote a book about Trump that stated, among other things, that Trump’s true net worth was significantly less than Trump had claimed that it was. Feeling defamed by that, Trump sued O’Brien and his publisher for libel.
Defendants moved for summary judgment on multiple grounds. The Law Division found it undisputed that Trump was a public figure. Therefore, to prevail on his claim, Trump needed to show actual malice by O’Brien in saying what he said. To do that, Trump needed to show, by clear and convincing evidence, that O’Brien made his statements either with knowledge that they were false or with reckless disregard of whether they were false or not. The Law Division found, as a matter of law, that there was no actual malice. Trump appealed, and the Appellate Division affirmed in an opinion by Judge Payne.
O’Brien had relied, in part, on information from multiple confidential sources. Trump claimed that that information was false, and that O’Brien had disregarded contrary information. In fact, as Judge Payne recounted, the confidential sources all gave net worth estimates that were consistent with each other, thereby making it reasonable for O’Brien to see them as reliable. Moreover, those sources provided additional information that O’Brien was able to verify independently. That fact too made it reasonable for O’Brien to believe that those sources were reliable, and helped negate actual malice. Finally, O’Brien included in the book Trump’s own denial (a denial that was not really a denial, but an “avoidance of the issue presented,” as Judge Payne put it) of the accuracy of the lower net worth figures.
Judge Payne relied heavily on a New York case in which former New York Knicks player Latrell Sprewell had sued a sports reporter for a newspaper article that alleged that Sprewell had broken his hand in a fight on his boat but had not promptly reported the injury to his team, a report that was based on information from confidential informants. The Sprewell article also included Sprewell’s denial of the report. New York’s Appellate Division ruled that summary judgment should have been granted for the reporter, due to the lack of actual malice.
The Sprewell case was very similar on its facts to the Trump matter. Besides, O’Brien had not relied on the lowest net worth estimates provided by his sources or stated that those estimates were factual. Rather, he merely stated his opinion, which was absolutely privileged.
Trump had alleged that one of his own financial statements confirmed his higher net worth. But that document, as Judge Payne noted, was far from definitive, since it was not based on generally accepted accounting principles and had other obvious limitations and qualifications. Trump himself stated that his net worth varied widely over time, depending, in part, on his “own feelings.” Independent sources had also remarked on the difficulty of accurately assessing Trump’s net worth.
Overall, since there were “no significant internal inconsistencies in the information provided by the confidential sources, nor was there ‘reliable’ information that contradicted their reports, so as to provide evidence of actual malice,” and there was no indication that O’Brien was aware of the information’s falsity or even had doubts about it, summary judgment was proper. Trump claimed that O’Brien harbored “ill will” against him, but even if that were so, “ill will” is not the same as actual malice.
Finally, Judge Payne dispatched various purported disputes of material fact that Trump had cited. None of them were material, and many of them were non-existent, resulting only from Trump’s mischaracterization of those facts.
In this case, the Appellate Division’s response to Trump as an appellant was “You’re fired.”