ACLU Responds To Scaramucci's Threat To Sue Tufts Student

Barbara Howard: Do you remember Anthony Scaramucci? He was the White House communications director for 10 days this summer. He's a Tufts University alum and he was scheduled to speak at Tufts today, but the school's put that event on hold, and that is because Scaramucci is threatening to sue his alma mater's student newspaper as well as Tufts graduate student Camilo Caballero. Caballero published a pair of op-eds this month in that student newspaper, The Tuft’s Daily, that called for Scaramucci to be removed from the advisory board of Tufts' Fletcher School of Law and Diplomacy. Scaramucci wants those op-eds to be retracted and he's demanding an apology. Camilo Caballero is being represented by the American Civil Liberties Union of Massachusetts, and with us on the line is the ACLU's Executive Director, Carol Rose. Hi, Carol.

Carol Rose: Hi, good to be with you, Barbara.

Howard: So does your client, Caballero, plan to respond?

Rose: Yes, of course, we'll respond to this threatening letter from Mr. Scaramucci. Sending a graduate student a legal demand letter accusing him of libel two days before Thanksgiving and then demanding a response within five business days is plainly mean-spirited.

Howard: The demand letter threatens to sue.

Rose: You know, but I think it's important for people to realize that we're not going to allow Mr. Scaramucci or anyone else close to or associated with the Trump administration to suddenly begin to use the defamation law to try to bully journalists into silence.

Howard: So one of the sticking points for Scaramucci, it seems, is that your client's op-eds refer to him as unethical. One passage reads that he, Scaramucci, is, quote “an unethical opportunist who exuded the highest degree of disreputability.” Now Scaramucci is taking to Twitter all over this, writing, quote “Can't write defamatory statements. People are entitled to their own opinions, but not to their own facts. Read the case law on this. It is well grounded,” end quote. So it appears that Scaramucci believes he has a case. What do you think?

Rose: Mr. Scaramucci has two hurdles. One is that initially, he has to show that it's provably false, and that's a big hurdle. And beyond that, and the bigger hurdle that he faces, is that as a public figure, Mr. Scaramucci — and other similarly situated public figures — can't recover from a person who publishes something about conduct or fitness unless the defendant, the student newspaper, knew that the statement was false and then acted in reckless disregard of the statements truth or falsity. So this is a very high standard, it’s the actual malice standard. It doesn't mean ill will, but it means, really, a knowing publication of something that's false.

Howard: So you're claiming Caballero believes that what he wrote is factually accurate?

Rose: Of course he stands behind what he wrote, but I think the legal standard is even higher than that and the burden is on Mr. Scaramucci to show that it's not. That's a very high standard. And the reason that the courts have imposed such a high standard when talking about public officials is that we want to encourage both the press and the public to be able to speak out to dissent against their government and public figures, to be able to criticize public officials and public figures, because that's so crucial to our democracy. Now we know that President Trump has made statements in the past saying that he'd like to see a change in the libel law, he’d like to be able to go after people who criticize him in the public, and it seems like in this case, I guess the apple doesn't fall very far from the trough.

Howard: What step will your client be taking next?

Rose: So in terms of looking at what his legal claims are, we'll definitely have some sort of a response on behalf of Mr. Caballero. And most importantly, we're going to have a response on behalf of the Fourth Estate, freedom of the press, and the American people.

Howard: OK. Thanks for joining us, Carol Rose.

Rose: Thank you, Barbara.

Howard: That’s Carol Rose, Executive Director of the American Civil Liberties Union of Massachusetts. The ACLU is representing Tufts University graduate student Camilo Caballero, who has been threatened with a defamation suit by former White House communications director Anthony Scaramucci. Scaramucci says that unless Caballero retracts the op-eds that he published in the Tufts students newspaper that were critical of him and apologizes, he says he will sue.

WGBH News did reach out to Scaramucci’s lawyer, Sam Lieberman, for comment. He responded with a statement he says was authorized by Scaramucci. It reads, in part, quote “the claim that Mr. Scaramucci is an unethical opportunist who exuded the highest degree of disreputability was presented as a fact, but has no basis whatsoever. As a public figure and investment advisor, Mr. Scaramucci will vigorously defend his integrity against false allegations. Mr. Caballero can end this now by apologizing for the statements where he crossed the line."