Case Summary and Outcome

The New York County Supreme Court dismissed the complaint against the New York Times and its reporters – David Barstow, Susanne Craig, and Russell Buettner filed by Donald Trump, former US President, while granting the Motion to Dismiss. In 2018, NYT and its reporters had published an article entitled “Trump engaged in suspect tax schemes as he reaped riches from his father”. They accused Trump of evading taxes and receiving at least $413 million from his father’s real estate empire based on the documents provided by Trump’s niece, Mary Trump. Trump accused NYT and its reporters of committing tortious interference while persuading Mary Trump to disclose 20-year-old tax and financial documents in violation of a 2001 settlement agreement. The Court dismissed Trump’s claims while ruling that the anti-SLAPP statute applied to the present case. The Court observed that the anti-SLAPP statute was amended in 2020 to broaden its scope and protect all forms of lawful conduct, including news gathering, while exercising the right of free speech in connection with an issue of public interest. The Court noted that anti-SLAPP statute was passed with the intention of countering “abusive and frivolous” lawsuits filed by Trump and other large corporations to intimidate critics. Trump’s argument that anti-SLAPP statute applied only to defamation suits and not to tort claims was rejected. The Court directed Trump to pay the attorneys’ fees, legal expenses and costs to NYT and its reporters, as mandated under anti-SLAPP statute.

---

Facts

---

Decision Overview

Judge Robert R. Reed of the Supreme Court, New York County delivered this order. The main issue for consideration was whether plaintiff had successfully alleged tortious interference, whether New York’s anti SLAPP applied to his claims, and whether the New York Constitution protected NYT’s right to solicit information from its source.

Trump argued that NYT tortiously interfered with the contract between Trump and his niece, Mary Trump. Trump asserted that NYT’s reporter caused Mary Trump to disclose 20-year-old tax and financial documents in violation of a 2001 settlement agreement.

He contended that NYT’s conduct is not constitutionally protected. While characterising the defendants’ conduct as “coercive, harassing, vindictive, misleading, purposeful, and in blatant disregard of the plaintiff’s contractual rights” [p. 17], Trump asserted that “[c]rimes and torts committed in news gathering are not protected by the First Amendment” as held in Le Mistral, Inc. v. Columbia Broadcasting System, 61 AD2d 491, 494 [1st Dep’t 1978]. Trump argued that the constitutional protections are irrelevant here as the NYT’s conduct was unlawful.

Trump argued that his claims did not fall within the ambit of anti-SLAPP provisions as it did not concern “communication in a public forum in connection with an issue of public interest”. He argued that he did not sue NYT for its publication of the 2018 article, but for its actions in inducing its co-defendant Mary Trump to breach her confidentiality agreement and turn over the confidential records.

Moreover, Trump argued that the anti-SLAPP law is inapplicable to claims other than for defamation. To support this argument, Trump cited Lindberg v. Dow Jones & Company, 2021 WL 3605621 [SDNY 2021]. According to Trump, in this case, the court applied anti-SLAPP law solely in the context of plaintiff’s defamation claim and declined to apply it to the plaintiff’s tortious interference claim. Trump further claimed that New York state courts have also declined to apply the newly amended version of the anti- SLAPP law to claims of tortious interference with contract while citing RSR Corp. v. LEG Q LLC, 2021 WL 4523615 [NY Sup Ct 2021]) and Aristocrat Plastic Surgery v. Silva, No. 153200/2021 [NY Sup Ct 2021).

Trump argued that there is nothing in the legislative history suggesting that the anti-SLAPP law was ever intended to apply to claims such as tortious interference. He argued that the New York legislature, while initially enacting the anti- SLAPP law, identified SLAPP suits as “suits brought purposefully to restrict freedom of speech” and noted that they “ordinarily arise out of defamation suits”. [p. 10]

Trump relied on Highland Capital v. Dow Jones & Company, Inc., 178 AD3d 572, 574, wherein while dismissing plaintiff’s tortious interference claim, the court stated that “[t]he complaint also failed to cite to any specific confidentiality agreements that defendants knowingly induced their sources to violate”. This second part, according to Trump, left open the question of whether that court would have ruled differently had the plaintiff actually identified the alleged confidentiality agreements breached – something that Trump does in his complaint.

In response to this, the defendants cited several cases such as Goldman v. Reddington, 2021 WL 4099462, Mable Assets, LLC v. Rachmanov, 192 AD3d 998, 1000-01 [2nd Dep’t 2021], and Bennett v. Towers, 982 NYS 2d 843, 848 [Sup Ct Nassau Cnty 2014] where the court had applied anti-SLAPP provisions to plaintiff’s tortious interference claim.

New York Civil Practice Law and Rule (CPLR) Rule 3211(g) states that “A motion to dismiss……in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation as defined in paragraph (a) of subdivision one of section seventy-six-a of the civil rights law, shall be granted unless……” New York Civil Rights Law, section 76(a) states that “An “action involving public petition and participation” is a claim based upon: (1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition”.

The Court determined that the anti-SLAPP statute applies to Trump’s claims against NYT and its reporters as anti-SLAPP statute is not limited to defamation claims. The court noted the transition of law from being limited to cases concerning “real estate development” in 1992 to claims based upon “any communication in a place open to the public or a public forum in connection with an issue of public interest” in 2020. [p. 8] The Court remarked that the original 1992 law was enacted as a response to “rising concern about the use of civil litigation, primarily defamation suits, to intimidate or silence those who speak out at public meetings against proposed land use development and other activities requiring approval of public boards” [p. 8], however it was amended in 2020 by New York legislature to “broaden the scope of the law and afford greater protections to citizens” beyond suits arising from applications to the government. [p. 8] The court observed the New York Civil Rights Law, section 76-a mandates a broad construction of “public interest”.

Next, the Court determined whether the New York Constitution protected NYT’s right to solicit information from its source. The Court held that the NYT defendants’ conduct was protected by free speech rights under Article I, section 8 of the New York State Constitution. The Court observed that New York Courts had rejected imposition of tort liability on the press based on allegations of inducing their source to breach a non-disclosure agreement.

The court highlighted New York’s “own exceptional history and rich tradition” of protecting the freedom of the press, extending to “the sensitive role of gathering and disseminating news of public events”. [p. 15] The court referred to Smith v. Daily Mail Publishing Co., 443 US 97, 103 [1979] wherein the US Supreme Court declared that “[If] a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order”. [p. 15] The Court noted that this principle had been applied to routinely rejected tort lawsuits premised on the publication of information that was obtained through ordinary newsgathering activities.

The Court noted that Trump had failed to support his claims with factual allegations that NYT’s conduct was  “fraudulent,” “willful, wanton, outrageous [and] motivated by spite, malice and vindictiveness”. The court held that Trump had failed to show that NYT’s conduct in persuading Mary Trump to provide documents from her client file for a story about Trump constituted an illegal act or tort under the New York law. The court rejected Trump’s reliance on Le Mistral, Inc. v. Columbia Broadcasting System, 61 AD2d 491, 494 [1st Dep’t 1978] since it focussed on trespassing into another person’s property, not similar to facts of the present case. The Court observed that Trump did not dispute that Mary Trump owned the files she disclosed to NYT, and thus there was nothing wrongful about Craig requesting them.

Lastly, the Court determined that even if Trump’s claims did not fail as a matter of constitutional law, they would have been dismissed since he failed to allege necessary elements under New York common law. According to the Court, Trump had to allege “[i] the existence of a valid contract between the plaintiff and a third party, [ii] defendant’s knowledge of that contract, [iii] defendant’s intentional procurement of the third-party’s breach of the contract without justification, [iv] actual breach of the contract, and [v] damages resulting therefrom” However, the court determined that NYT’s purpose in reporting on a newsworthy story constituted justification as a matter of law (Condition 3), which led to failure of Trump’s tort claims.

The Court observed that New York courts had consistently held right to engage in news gathering activities to be a justification. The court referred to Povitch case, in which tortious interference claim was dismissed against Maury Povitch — a syndicated talk show host — for inducing plaintiff’s ex-wife to speak about their divorce proceedings during his talk show, in violation of a confidentiality provision in the couple’s divorce settlement. In dismissing the claim against Povitch, the court had observed that the freedom of the press to report on newsworthy subjects was an appropriate justification to preclude a claim of tortious interference.

Therefore, the Court held that NYT and the defendant reporters were undisputedly engaged in routine newsgathering, which constituted a justification for dismissal of Trump’s tortious interference claim.

Lastly, the Court determined that Trump failed to adequately argue that NYT enriched at his expense, to identify the harm he suffered which led to unjust enrichment, and that the reporters had committed torts outside the scope of their normal work duties. Accordingly, Trump’s claim for aiding and abetting tortious interference, unjust enrichment and negligent supervisions were also dismissed. The Court ordered Trump to pay the accumulated attorneys’ fees, legal expenses and costs of the defendants in accordance with the provisions of New York Civil Rights Law § 70-a(1)(a).

---