While still a presidential candidate last year, Donald Trump developed a unique style of Twitter based communication that would underlie his presidency. Early many mornings, he barked out punchy remarks in all caps, often addressing brands and individuals by name. Since his ascent to the presidency, his Twitter account has become his mouthpiece, and he has continued to voice personal commentary about companies next to government and policy messages.
Just before his inauguration, Trump tweeted “Buy L.L. Bean!” as a message of thanks to the company’s founder’s granddaughter, who had donated heavily to his campaign. But more often than not, his tweets are less congenial, often functioning as grievances or even threats which can have tangible effects on their subjects. Days after he tweeted an excoriation of Lockheed Martin’s F-35 program, Lockheed’s stock tanked nearly 2.5%. When he learned the cost of a new Air Force One plane being built by Boeing, he barked “Cancel order!” resulting in a steep dip in Boeing’s stock price.
The tweets about Boeing and Lockheed might be perceived to have some alignment with his exercise of presidential duties, which could absolve him from any responsibility. This is because Trump, in his role as president, is afforded limited immunity against civil liability for acts committed in the capacity of his official duties. The damage done to these companies’ stock prices could reflect an actual devaluation based on a presumed pullback in government purchases rather than reputational damage. Although some of his tweets may be defensible, this is not always the case.
Last week however, he took his critique to a new arena by tweeting that his daughter—who claims to have stepped down from her management and operations roles in her fashion brand—has been “treated unfairly” by Nordstrom. Unlike his tweets about overpriced planes, his criticism of Nordstrom was not grounded in any governmental activity, nor do we know if it can be backed up by any facts. Nordstrom’s stock price did not suffer any immediate devaluation, but there are certainly other means to measure damage which may have taken place.
Public comments about his family’s businesses (which he has promised to separate himself from), or comments about brands unrelated to his duties as the president, are arguably unlikely to fall under this umbrella of immunity. During his presidency, Bill Clinton tried and failed to claim that presidential immunity should shield a sitting president from having to defend civil lawsuits even if they are unrelated to his official duties. The Supreme Court refused his request for a stay in his civil sexual assault lawsuit with Paula Jones. Since so far, Trump appears to be distracted from his presidential duties often, Trump too could face broad civil liability for his actions taken out in a personal capacity.
Ethically speaking, there are certainly obvious concerns with a government figure’s promotion of a brand (and especially one connected to his daughter). However, the statutory federal prohibition does not apply to the President or the Vice President. Nonetheless, the President’s disparaging comments are not without consequence. Norm Eisen, the co-founder of the watchdog group CREW (Citizens for Responsibility and Ethics in Washington), suggested in a tweet that California Unfair Competition law could support a cause of action for Nordstrom against Trump in court. The California law protects against “unfair business practices,” including commenting about a company’s contractual undertakings. If Trump’s tweet disparaging Nordstrom’s business practices leads to actual harm, he could be liable for damages.
Many states, including New York, protect businesses against “trade libel,” or the publication of a false statement that is derogatory to the plaintiff’s business so long as it is “calculated to prevent or interfere with relationships between the plaintiff and others, to the plaintiff’s detriment.” To the extent that reputational damage is suffered, many states also offer corporate defamation as a separate cause of action.
Generally speaking, these actions require a false statement which is published and causes damage to the corporation. In the context of the “Nordstrom tweet,” Trump’s allegation that the corporation treated Ivanka “unfairly” may be too vague to fall into the category of “false,” but if there is strong evidence of actual damage caused, an argument in Nordstrom’s favor could be made.
Trump himself is no stranger to defamation lawsuits; his wife Melania is also embroiled in a defamation dispute with the Daily Mail in which she alleges that an article has damaged her ability to capitalize on her opportunity to be a walking product placement in the upcoming “multi-year term” in which she will be “one of the most photographed women in the world.”
During his campaign, Trump publically advocated for “opening up our libel laws” in order to make it easier for people who have been defamed to sue and threatened to sue the New York Times for publishing an article about his unwanted advances on women. Ironically, Trump is also currently being sued by one of the women who has accused him of sexual assault after he rebuked her claim and publicly called her a liar.
Trump, in his role as president, is afforded a degree of limited immunity against civil liability for acts committed only in the capacity of his official duties. His comments about his family’s businesses (which he has promised to separate himself from), or comments about brands unrelated to his duties as the president, are arguably unlikely to fall under this umbrella. During his presidency, Bill Clinton tried and failed to claim that presidential immunity should shield a sitting president from having to defend civil lawsuits even if they are unrelated to his official duties. The Supreme Court refused his request for a stay in his civil sexual assault lawsuit with Paula Jones.
So far, most of Trump’s more aggressive tweets have been aimed at media organizations who probably have no interest in suing the president. And much like the expending of political capital, as Trump continues to hurl insults, each next one’s effect is diminished. Nonetheless, as president, Trump’s words have a weight and consequence that he is unfamiliar with – as he continues to struggle with the bounds of his office, expect more legal action.
Jessica Meiselman is a lawyer and writer based in Brooklyn. She is a contributor on Complex and Noisey among other websites. Her work can be found at www.jessicameiselman.com.