ACLU To Donald Trump: You’re Filed!

SAN DIEGO – The ACLU of San Diego & Imperial Counties filed a friend-of-the-court brief in the Ninth Circuit Court of Appeals charging that a district court’s ruling erred in finding that Trump University is not a public figure, notwithstanding its direct and ubiquitous association with one of the planet’s most recognizable public figures, Donald Trump.

A former student of Trump University, Tarla Makaeff, sued the corporation for deceptive and unethical business practices. Trump University (TU) responded with a countersuit for defamation because of statements she made about her dissatisfaction with the corporation to the Better Business Bureau and her bank. A district court judge ruled that TU is not a public figure, denying Makaeff’s motion to strike the defamation claim as a strategic lawsuit against public participation (SLAPP).

“Our legal argument is simple: Trump University is inextricably intertwined with Donald Trump, who is indisputably a public figure,” said David Blair-Loy, legal director of the San Diego ACLU. “The university cannot benefit from his notoriety to attract students, tuition and media coverage, and then disclaim association with him when it is tactically convenient.”

The U.S. Supreme Court articulated an “actual malice” standard in defamation claims against public officials and public figures, holding that they must show that an allegedly defamatory statement was “made with actual malice” to prevail. Ordinary citizens are not required to show actual malice. Because defamation claims by public officials and figures could be easily used to suppress criticism of officials and celebrities protected by the First Amendment, the Court said that there must be clear and convincing evidence that the speaker knowingly offered falsehoods or spoke with “reckless disregard” of whether the charge was false or not.

The ACLU brief asserts that corporations cannot try to suppress free speech and criticism using the courts. “Corporations generally have a wealth of resources that a citizen critic lacks,” said Sarah Abshear, staff attorney of the San Diego ACLU. “Without First Amendment protections, corporations would be able to intimidate legitimate criticism by threatening expensive litigation or actually suing anyone brave enough to challenge them.”

SLAPPPs— weak claims intended to censor, intimidate or silence critics, usually by burdening them with expensive legal defense—deter citizens from exercising their political and legal rights. California has one of the strongest anti-SLAPP laws in the country. The district court correctly held that Makaeff’s speech was covered by the statute, but disappointingly erred on the issue of whether Trump University should be considered a “public figure,” making it easier for TU to defeat Makaeff’s motion to strike the counterclaim under the anti-SLAPP statute.

The ruling ignores the reality of the situation. It is beyond dispute that Donald Trump is a public figure; TU concedes this point. Not only does an image and biography of Trump appear on the university website’s landing page, but TU produced and distributes a promotional video for the school featuring Trump, heralding in text at the beginning, “Donald Trump Welcomes You.” TU urges people who want to succeed like Donald Trump to go to Trump University, where Donald Trump will teach them how to be like him.

“It is simply not credible for Trump University to claim that it is not a public figure when it relies so heavily on Donald Trump in marketing. Any reasonable person would think they are one and the same for public figure analysis,” said Abshear.

In 2010, the institution officially changed its name from Trump University to The Trump Entrepreneur Initiative after the New York State Department of Education declared that it was “misleading and even illegal” for the institution to market itself as a university. It offers online courses in real estate, asset management, entrepreneurship and wealth creation.