MacMillan CEO responds to Trump's Cease & Desist Order re publishing of Fire and Fury

["Dave Farber" <dave () farber net>]

---------- Forwarded message ---------
From: Kimi Wei <kimi () thewei com>
Date: Tue, Jan 9, 2018 at 6:52 PM
Subject: MacMillan CEO responds to Trump's Cease & Desist Order re
publishing of Fire and Fury
To: David Farber <dave () farber net>


https://www.techdirt.com/articles/20180108/20341838963/publisher-not-all-impressed-trumps-defamation-threat-letter-promises-to-defend-first-amendment.shtml

Publisher Not At All Impressed By Trump's Defamation Threat Letter;
Promises To Defend The First Amendment

from the good-luck-with-that dept

Last week we wrote about Donald Trump having a lawyer send out threatening
letters to former top advisor Steve Bannon, author Michael Wolff and
publisher Henry Holt & Co. over the publication of Wolff's new book, Fire
and Fury about the Trump administration. The letter to Wolff and the
publisher were notable for lacking a single statement that was actually
claimed to be defamatory. As we've noted, that's often the hallmark of a
completely bullshit defamation threat letter.

Late yesterday, the publisher responded. John Sargent, the CEO of Macmillan
-- the publishing giant that owns Henry Holt & Co. -- first sent a strong
letter to employees noting that the company would not back down, and then
lawyer Elizabeth McNamara, representing Macmillan, from legal powerhouse
Davis Wright Tremaine sent quite the impressive letter responding to
Trump's demand. It's worth reading in full. The summary:

My clients do not intend to cease publication, no such retraction will
occur, and no apology is warranted.

There's so much more worth quoting in the letter. It points out that Trump
has the largest platform in the world to respond to anything he actually
believes is false in the book. While the letter does not directly state
this, the point is pretty clear. The point of defamation law is to be able
to protect the powerless from having no recourse should they be defamed --
yet the President has plenty of power and can respond to anything that's
actually wrong. But, tellingly, he has not done so.

As President Trump knows, Mr. Wolff was permitted extraordinary access to
the Trump administration and campaign from May 2016 to this past October,
and he conducted more than 200 interviews with President Trump, most
members of his senior staff, and with many people they in turn talked to.
These interviews served as the basis for the reporting in Mr. Wolff's book.
We have no reason to doubt -- and your letter provides no reason to change
this conclusion -- that Mr. Wolff's book is an accurate report on events of
vital public importance. Mr. Trump is the President of the United States,
with the "bully pulpit" at his disposal. To the extent he disputes any
statement in the book, he has the largest platform in the world to
challenge it. Generalized and abstract threats of libel do not provide any
basis for President Trump's demand that Henry Holt and Mr. Wolff withdraw
the book from public discourse. Though your letter provides a basic summary
of New York libel law, tellingly, it stops short of identifying a single
statement in the book that is factually false or defamatory. Instead, the
letter appears to be designed to silence legitimate criticism. This is the
antithesis of an actionable libel claim.

The response also points out that the letter misrepresents what Wolff
claimed in order to suggest actual malice (kind of funny to see a
misrepresentation being used to argue a defamatory misrepresentation...).
Oh and also this:

To briefly address a few of the additional substantive claims identified in
your letter, we note that you understandably cite to New York as the
governing law, yet we were surprised to see that President Trump plans on
asserting a claim for "false light invasion of privacy." As you are no
doubt aware, New York does not recognize such a cause of action. Messenger
ex rel. Messenger v. Gruner Jahr Printing and Pub., 94 436, 448 (2000);
Hurwitz v. US, 884 F.2d 684, 685 (2d Cir. 1989). Not only is this claim
meritless; it is non-existent. In any event, it is patently ridiculous to
claim that the privacy of the President of the United States has been
violated by a book reporting on his campaign and his actions in office.

As for the claims that Wolff was "inducing" Steve Bannon and others to
breach their contract:

Next, your letter focuses on alleged claims for tortious interference with
contractual relations and inducement of breach of contract. Yet, as your
client will no doubt appreciate, timing is everything when it comes to
these claims. And there is no dispute that Mr. Bannon had already
communicated with Mr. Wolff freely and voluntarily well before the "notice"
you have provided. Mr. Bannon plainly needed no cajoling or inducement to
speak candidly with Mr. Wolff. And an after-the-fact lawyer's letter
putting my clients "on notice" does not put the genie back in the bottle,
much less subject Henry Holt or Mr. Wolff to liability. The law treats
sources like Mr. Bannon as adults, and it is Mr. Bannon's responsibility --
not Henry Holt's or Mr. Wolff's -- to honor any contractual obligations.
Indeed, your attempt to use private contracts to act as a blanket
restriction on members of the government speaking to the press is a
perversion of contract law and a gross violation of the First Amendment. No
court would support such an attempt to silence public servants and the
press.

The letter to employees is also worth reading as it talks up the importance
of the First Amendment -- with citations and quotes from key important
cases having to do with free speech and the First Amendment. As the letter
concludes:

There is no ambiguity here. This is an underlying principle of our
democracy. We cannot stand silent. We will not allow any president to
achieve by intimidation what our Constitution precludes him or her from
achieving in court. We need to respond strongly for Michael Wolff and his
book, but also for all authors and all their books, now and in the future.
And as citizens we must demand that President Trump understand and abide by
the First Amendment of our Constitution.

Your move, Trump.


Kimi Wei
kimi () thewei com  @kimiwei
facebook.com/thekimiwei
862-203-8814



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