A debate raged over the weekend about whether management of the Red Hen restaurant in Lexington, Va., was justified in asking White House press secretary Sarah Huckabee Sanders to leave the premises on Friday night. Then Monday morning, President Trump transported the debate to another realm altogether:
Huh. Forever on his petty low road, Trump voiced his inner germaphobe and apprised the world of his exterior-interior tidiness rule. In the process, he slimed a small business, as journalism professor Dan Kennedy observed on Twitter:
We’re not so sure about the defamation here. Trump is entitled to his opinions as to the cleanliness of the Red Hen’s exterior, though it looks just fine to the Erik Wemple Blog. We’d note, too, that it wasn’t sufficiently “filthy” to repel Sanders on Friday night; she and her fellow travelers were enjoying cheese at the time that Sanders was asked to abandon the establishment.
And the kicker — “I always had a rule, if a restaurant is dirty on the outside, it is dirty on the inside!” — is nothing more than poorly punctuated speculation.
As we’ve noted before in this space, assertions of opinion — “fair comment” — enjoy protection in the United States, to the extent that one court called it the “brightest jewel in the crown of the law.” An adjacent protection relates to hyperbole — extemporaneous flapping of the rhetorical gums to denounce people, things, businesses. In the case Greenbelt Cooperative Publishing Association v. Bresler, the Supreme Court stood behind a newspaper that published citizen complaints about a developer practicing “blackmail” in pursuit of zoning variances. No way would readers understand this criticism as a literal allegation that the developer had committed the crime of blackmail. “Even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating position extremely unreasonable,” noted the opinion in the case.
Jeffrey J. Pyle of Prince Lobel Tye LLP, who has defended clients in defamation cases, tells the Erik Wemple Blog, “The tweet is pretty clear that the implication of uncleanliness inside is pure speculation on his part, and it therefore doesn’t convey a statement of fact. And whether the awnings are dirty or not may also be deemed a question of opinion.” And Clay Calvert, a University of Florida professor steeped in libel law, notes, “If he had said there were rats in the kitchen or that the restaurant used spoiled food, that would be a very different — and likely actionable — matter.”
So the president should thank that First Amendment that he has threatened before to gut. During his presidential campaign, Trump took a bizarre and critical interest in Republican strategist Cheri Jacobus, who criticized him on cable television, like this (for example):
Jacobus sued Trump for defamation, but Judge Barbara Jaffe of the Supreme Court of the State of New York dismissed the case. The claim that Jacobus had begged for a job with the campaign — which Jacobus rebutted with documentary evidence — “is reasonably viewed as a loose, hyperbolic and figurative” remark, ruled the judge — a characterization that applies to thousands of Trump’s social-media eructations. Also from the judge: “His tweets about 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.”
Now there’s a new slogan for the Trump presidency: “Deflecting serious consideration.”
All of which isn’t to say that Trump’s Red Hen tweet isn’t irresponsible and at odds with the public record. In a chat with the Erik Wemple Blog, Katie McIvor, the health inspector who visited the Red Hen in February 2018, declined to comment on the facilities themselves but referred us to the published record:
No violations were found.
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