The magazine’s self-described thought experiment centered on Eric Trump’s comments about Hunter Biden at a campaign rally, and whether they would rise to the level of legally actionable defamation.
“How do you think [Joe Biden’s] son is feeling right now?” Eric Trump asked the crowd in Minnesota last week. “Right after embezzling a lot of money, taking a lot of money, the crookedness.”
The first issue is whether Hunter Biden is a private citizen or a public figure. Given the national story surrounding his job in Ukraine, and its role in a potential Trump impeachment, Biden would likely be classified as a “limited-purpose public figure.” This public figure designation creates a higher standard to prove defamation in court.
Secondly, was Trump lying about Biden to injure his reputation, or was he presenting his opinion that Biden is “crooked”? “Rhetorical hyperbole” is a principle often employed by politicians and public officials that protects exaggerated speech as free speech. Mr. Kumin believes that Trump’s comments could fall under that argument.
“If you said, for example, ‘Hunter Biden is a murderer,’ you would need to include a specific example of that,” explains Mr. Kumin. “Otherwise, it could be interpreted as rhetorical hyperbole.”
While this principle allows politicians and others to speak freely, without the constant worry of litigation, it’s easy to imagine how such a blanket protection against defamation could be abused.
“I [have my] concerns with this doctrine,” says Mr. Kumin. “It’s almost like the more hyperbolic you get with the comments, the more those comments get shielded [under the law]. We’re seeing the concept of rhetorical hyperbole stretched to the limits. Under the First Amendment you want all ideas to be heard, but you also don’t want politicians peddling conspiracy theories. And the Trump administration has trafficked conspiracy theories.”
Nevertheless, it remains highly unlikely that the Bidens will take legal action against Eric Trump for defamation considering the political risks involved.
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