Question for legal eagles: Is this answer evidence of defamation? The key bit comes at 4:45 of the clip below, after several minutes of chitchat about Eichenwald wanting to sue a Twitter troll who tweeted a strobe image at him, allegedly triggering a seizure. (Eichenwald is epileptic and has spoken about it publicly, which the troll seems to have known.) Stephanopoulos was trying to get at why so many Trump fans dislike Eichenwald and asked him about a series of tweets that the reporter sent in September, specifically one in which he said he believed that Trump had been institutionalized for a nervous breakdown in 1990. Eichenwald ended up deleting the tweet — after it had been retweeted more than 500 times — but you can see the series of tweets that led up to it here. He told Stephanopoulos this morning that that was all part of a joke, supposedly aimed at satirizing the right’s obsession with Hillary Clinton’s health, but it’s not clear at all from the tweets memorialized at that last link that he was kidding. He was questioned by other Twitter users at the time about the “institutionalized” tweet too; you can see one back and forth here, in which he defends the news value of Trump’s mental-health history. Does it sound like he’s joking? Given the buzz Eichenwald’s tweets generated at the time, a lot of people took him seriously. Go figure that when an investigative reporter from Newsweek makes a claim like that, readers might take him at face value.
The strangest part, though, is when he tells Stephanopoulos that not only was he joking in the deleted tweet but that the tweet was a “signal” to a source. Really? He wanted to send a coded message to someone, like “the falcon flies at midnight,” and his choice was to tweet … that the Republican nominee for president had once had a nervous breakdown that required hospitalization? Does that seem plausible?
It’s difficult under U.S. defamation law to defame a public figure, and Trump, as a longtime celebrity turned president, is as public as it gets. But even the very famous can prove libel if they can show that their reputation was damaged by an assertion of fact that was made with “malice,” i.e. either knowing that it was false or with reckless disregard for whether it was true or false. Eichenwald’s explanation here implies that he never had reason to believe that the institutionalization claim was true; it was just a signal aimed at a source and/or a joke, not something that anyone should have taken seriously — even though people did take it seriously, and had no obvious reason not to given the context. If you tweet “John Doe has a drug problem” and John Doe sues you, how is “I was joking” or “I was speaking in code” a defense if everyone understood your statement as an earnest accusation? If I were a cynic, I’d wonder whether Eichenwald did believe the institutionalization claim at the time but then came to doubt it, and now is desperately trying to walk it back by insisting that it was never an assertion of fact at all. It was a joke, and jokes are protected speech! And/or it was a coded message, not something that anyone should have taken literally! Would a judge buy it?
Here’s how Eichenwald responded this morning when he was challenged on this answer:
— Kurt Eichenwald (@kurteichenwald) December 20, 2016
“Some” of what he said is wrong? Trump’s not going to sue the guy and drive publicity to this, especially since Eichenwald did end up deleting the tweet, but it’s a bizarre way for a “serious reporter” to behave. And not for the first time lately either. Exit question: Eichenwald drops this answer on him and Stephanopoulos has no follow-up question?