Tulsi Gabbard Sues Hillary Clinton for Calling her a Russian Asset
Congresswoman and Democratic presidential contender Tulsi Gabbard has sued former Secretary of State Hillary Clinton for defamation, alleging $50,000,000 “and counting” in damages, stemming from statements Clinton made implying that Gabbard was a Russian asset.
On October 17, Clinton appeared on Campaign HQ with David Plouffe. She referred to “somebody” in the Democratic primary and said that she is a “favorite” of the Russians,” that they’re supporting her and that she is a “Russian” asset.
The next day, when asked if the comments were about Gabbard, Clinton responded, “If the nesting doll fits.”
Gabbard’s lawsuit, filed on January 22, alleges that Clinton has “doubled down” and stood by these statements in the months since making them. She also alleges that these allegations have been “devastating” to Gabbard’s reputation.
Every defamation claim must meet the four elements:
(a) it must be a false statement concerning another;
(b) the statement must be defamatory;
(c) there must be a “publication” to at least one third party; and
(d) harm to the plaintiff’s reputation.
Where public figures are concerned, and especially public officials, there are additional First Amendment protections. In the landmark New York Times v. Sullivan decision, the Court ruled that public officials must show “actual malice” which means, in this context, that the defendant knew that the statement was false or acted with reckless disregard for the truth.
Let’s look at how Gabbard’s complaint deals with these elements.
To start, Hillary’s offending statement did not specifically state Gabbard’s name. While a statement need not specifically name the plaintiff, it has to be obvious that the alleged comments referred to the plaintiff. In fact, the language must be such that people reading it who know the plaintiff would be able to understand that the statement is referring to the plaintiff.
For example, a defamation action against former New York Attorney General Elliot Spitzer was dismissed based on this element. Spitzer had penned an article accusing “employees” of professional services firm Marsh & McLennan of “pocketing increased fees and kickbacks.” One of those employees, William Gilman, sued. The Southern District of New York, later affirmed by the Second Circuit, dismissed the lawsuit, ruling that the statement did not necessarily refer to Gilman in the mind of a reasonable reader.
Gabbard’s complaint addresses this requirement by devoting two paragraphs to the follow-up interview in which, asked whether her statement referred to Tulsi, stated “If the nesting doll fits.” In fact, the complaint devotes an entire allegation to observing that “Clinton’s reference to “the nesting doll” is a reference to the universally known Russian nesting dolls (Matryoshka dolls).”
To establish defamatory nature, the complaint alleges that the “ordinary and average person” would understand them to impute Tulsi with “a lack of fitness for office and profession,” and potentially “even as a Russian agent and traitor to this country.” The complaint also plays up Hillary’s stature as former Secretary of State, United States Senator and First Lady, especially her access to information and intelligence, to bolster the idea that her statements are harmful.
Publication to a third party, in this context, simply means spreading the allegation. The complaint ticks off a laundry list of mainstream news outlets that ran with the story of Hillary’s statement, though that the statement was published is self-evident anyway.
In her allegations of harm, Gabbard alleges that she suffered “anguish and damage to reputation,” substantial injuries to her positions as Congresswoman, presidential candidate and even officer of the National Guard. She also alleges that the allegation that she is a Russian asset “were accepted as true by millions of Americans, including large numbers of voters in battleground presidential primary states.”
Note that damages need not be shown in cases where “slander per se” is alleged, which includes slandering a person’s fitness for her work. This complaint alleges this, but for good measure, goes on to estimate $50,000,000 in “actual” economic damages.
It seems self-evident then, that the complaint at least alleges a case of defamation. So, if shown, the question really becomes the extent to which Hillary’s statements are protected by freedom of speech. This is an especially important issue because high-profile politicians, and especially presidential candidates, are assumed to incur high levels of rigorous scrutiny from the public and their colleagues.
Anticipating this difficulty, Gabbard’s complaint devotes 10 paragraphs to establishing that Clinton acted with “actual malice,” the constitutional standard for defamation lawsuits by public officials. Some of the points include:
1. Because of her official positions, Hillary was in prime position to know that her allegation of Tulsi being a Russian asset was false;
2. That it is extremely improbable that a four term United States Congresswoman and major in the National Guard would be a Russian asset; and that a statement to that effect without evidence constitutes at least “reckless disregard for the truth.” and
3. That Clinton’s long history of animosity towards Tulsi, dating back to Gabbard’s endorsement of Bernie Sanders during the 2016 Democratic presidential campaign, undoubtedly colored her judgment. While malice in the commonly used sense of the term is not necessary to prove legal “malice,” malicious intent can be used to show motive for lying about and hurting the plaintiff.
In all, Gabbard’s 14 page, 60-paragraph complaint delves farther into detail and gives much more background information than is typically necessary in a civil complaint.
By doing so, it implicitly recognizes the gravity of using the civil court system to punish political statements regarding presidential candidates. The extreme scrutiny and openness of the presidential election process may militate against allowing this, and courts will no doubt be hesitant to inject themselves in debates over the fitness of candidates.
Assuming the case goes forward, the courts may have to craft new standards to apply to this unprecedented defamation action. And a debate of whether, by running for president, one opens herself to virtually any avenue a verbal attack, would no doubt be central to this case.
We will keep a close eye on this case, as it could generate new case law for defamation of public officials and figures.