Congresswoman Tulsi Gabbard (D-HI) defamation complaint against former Secretary of State Hillary Clinton is simply a reflection of the desperate state of her presidential campaign and of the need to strengthen anti-SLAPP laws to prevent dubious lawsuits such as this.
A Troubled Campaign
Congresswoman Tulsi Gabbard (D-HI)’s presidential campaign has been plagued by allegations that her campaign was being promoted by Russian media and pro-Russian online bots from the day it launched.
On the very day that Gabbard formally launched her campaign in 2019, NBC News ran a story, “Russia’s propaganda machine discovers 2020 Democratic candidate Tulsi Gabbard” that explained “[t]he Russian propaganda machine that tried to influence the 2016 U.S. election is now promoting the presidential aspirations” of Gabbard. A subsequent analysis by the Foreign Policy Research Institute in November 2019 found Gabbard received the most favorable treatment from Russian media outlets and bots of any Democratic contender.
Gabbard also has been dogged by her surprise visit to Syria and defense of Russian ally Syria President Bashar al-Assad after allegations of chemical weapons attacks against his people.
Gabbard’s quixotic campaign failed to gain traction, as the candidate has averaged a mere 1.4 percent in the polls according to RealClearPolitics and has failed to meet fundraising thresholds to qualify for the most recent debates. She further alienated Democratic voters by voting “present” on the articles of impeachment against President Trump. Even worse, she has seen a dramatic drop in her popularity in her home state that led her to announce that she would not seek reelection as she faced a formidable primary challenge.
Secretary Clinton’s “Russian Asset” Comments
The only press Gabbard has garnered in recent months stemmed from a podcast interview given by former Secretary of State and Democratic nominee Hillary Clinton who predicted that the Republicans would promote a third-party candidacy in 2020.
They are also going to do third-party again, and I’m not making any predictions but I think they’ve got their eye on somebody who is currently in the Democratic primary and are grooming her to be the third-party candidate. She is a favorite of the Russians. They have a bunch of sites and bots and other ways of supporting her so far. And, that’s assuming Jill Stein will give it up, which she might not because she’s also a Russian asset. Yeah, she’s a Russian asset. Totally. And so they know they can’t win without a third-party candidate. I don’t know who it’s going to be, but I will guarantee they’ll have a vigorous third-party challenge in the key states that they most need it.
Clinton clarified her statement to make clear she was referring to the Republicans grooming a third-party candidate, although a Clinton spokesman did comment that “if the [Russian] doll fits . . . ” The Congresswoman seized upon the statement and claimed: “Hillary Clinton emerged recently to claim, with no basis in fact, that I am being ‘groomed’ by the Russian government to undermine America.” The Washington Post fact-checker deemed this to be false and gave this contention “three Pinocchios”
A Legal “Hail Mary”
Undeterred, in an attempt by a dying campaign to get back in the headlines, Gabbard has filed a $50 million defamation lawsuit against Secretary Clinton for this statement. The complaint, however, must overcome significant obstacles:
- Gabbard must show that Clinton’s statement was one of fact and not opinion, as opinion is not actionable except where the average listener would “conclude from the language of the statement and its context that [she] was implying that a false statement of fact is true.” A fair reading of the statement is that Clinton’s statement is simply her opinion.
- Gabbard must show that Clinton’s statement is false, which may be difficult given the many reports of Russian media and bots favoring Gabbard.
- Under the Supreme Court’s ruling in New York Times v. Sullivan, the First Amendment requires that a public official such as Gabbard demonstrate that Clinton made the statement with malice. Specifically, she must show that Clinton either knew her statement was false or had serious doubts about the truth of the statements. This would appear to be an insurmountable challenge.
The complaint was filed in New York which has an extremely narrow anti-SLAPP (Strategic Lawsuits Against Public Participation) law that would not apply in this instance, as opposed to jurisdictions such as California where a court likely would grant a motion to strike the complaint and Gabbard would be liable for Secretary Clinton’s attorneys’ fees. There have been calls for New York to strengthen its anti-SLAPP law and for a federal anti-SLAPP law. Lawsuits such as this only highlight the need for such action.