Just last week, we discussed Donald Trump's ridiculous and almost instinctual reaction to threaten to sue
the media any time they write something about him that he dislikes. That's not how defamation law works, and Trump should know since he's sued for defamation a few times in the past, and lost. Of course, Trump has also flat out admitted
that he sometimes sues for defamation just to cost opponents money, which is the classic definition of a SLAPP (Strategic Lawsuit Against Public Participation) lawsuit.
This is all quite relevant today, seeing as a whole bunch of stories broke in the past 24 hours or so about Trump, mainly focusing on claims by women of (frankly) horrific things he's accused of doing to them (and, again, we're not a political site, and I'd really, really appreciate it if the comments on this post don't go down a political path, even if I know such a request is unlikely to be respected). Trump and his lawyers immediately started threatening to sue. The main target so far is the NY Times, which published the first major story, focusing on the allegations of two women
. But within that story, the article notes that the reporters got Trump on the phone and he immediately threatened a lawsuit:
In a phone interview on Tuesday night, a highly agitated Mr. Trump denied every one of the women’s claims.
“None of this ever took place,” said Mr. Trump, who began shouting at the Times reporter who was questioning him. He said that The Times was making up the allegations to hurt him and that he would sue the news organization if it reported them.
“You are a disgusting human being,” he told the reporter as she questioned him about the women’s claims.
A few hours later, there were reports that Trump's lawyers were preparing a lawsuit against the NY Times and the Palm Beach Post, which had another story of another woman. Instead, however, Trump's lawyers sent a laughably thin cease and desist letter
. As we and others have pointed out repeatedly, a defamation threat letter that fails to point out what statements are actually defamation is an empty threat letter designed to scare off the naive and clueless.
The NY Times, of course, is neither weak, nor clueless, especially when it comes to defamation law. The NYT's assistant General Counsel David McCraw's reply is well worth reading. After first (of course) saying that they won't take down the article, McCraw makes the argument that Trump is effectively "defamation proof" as his reputation is so bad on these matters, that any article couldn't make it much worse.
The essence of a libel claim, of course, is the protection of one's reputation. Mr. Trump
has bragged about his non-consensual sexual touching of women. He has bragged about
intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio
host's request to discuss Mr. Trump's own daughter as a "piece of ass." Multiple women
not mentioned in our article have publicly come forward to report on Mr. Trump's
unwanted advances. Nothing in our article has had the slightest effect on the reputation
that Mr. Trump, through his own words and actions, has already created for himself.
That's... pretty incredible. It sure would be interesting in court (though it's unlikely to ever get there, as we'll explain). From there, the NYT notes a second point, which is that they were reporting on a matter of national importance:
But there is a larger and much more important point here. The women quoted in our
story spoke out on an issue of national importance indeed, an issue that Mr. Trump
himself discussed with the whole nation watching during Sunday night's presidential
debate. Our reporters diligently worked to confirm the women's accounts. They
provided readers with Mr. Trump's response, including his forceful denial of the
women's reports. It would have been a disservice not just to our readers but to
democracy itself to silence their voices. We did what the law allows: We published
newsworthy information about a subject of deep public concern. If Mr. Trump disagrees,
if he believes that American citizens had no right to hear what these women had to say
and that the law of this country forces us and those who would dare to criticize him to
stand silent or be punished, we welcome the opportunity to have a court set him straight.
Notably missing from this letter is the usual response to blowhard defamation threats: that truth is an absolute defense to defamation, and in suing, you are opening yourself up to pretty widespread discovery -- and also that Trump has a very, very high bar to cross to win a defamation lawsuit. That is, as we've discussed many times, in the US, for there to be defamation of a public individual, the material printed must not just be false, but must be published with malicious intent. That's going to be virtually impossible for Trump to show if it even gets that far.
Of course, as many have pointed out, it's quite unlikely that any lawsuit (if one is actually filed -- and so far this campaign, Trump has threatened to sue publications many times and never followed through) would be dropped by Trump soon after the election. The only reason to threaten or to file a lawsuit is really just to scare off other women from coming forward and/or to scare off other publications for publishing such a story. And that's the real issue here: the chilling effect of abusing defamation law in this manner.
While Tim O'Brien, a writer that Trump actually did sue for defamation (and where he lost badly -- actually, he's the author that Trump gleefully explained that he sued just to cost him money), is saying that publications shouldn't fear Trump lawsuits
because he'll always lose and it's not that easy. A publication like the NY Times has the resources to handle any such lawsuit. But many (perhaps most) other publications do not. And it is both timely and cost-intensive to defend against even a bogus lawsuit. And every publication knows that.
And that's the real problem here. It creates massive chilling effects on reporting on a topic of national importance concerning the Presidential election.
This is why we've been blathering on for years about the need for a federal anti-SLAPP law
that would prevent these kinds of lawsuits, allowing for them to be tossed out of court quickly and where those who file such suits will have to pay the expenses of those they sued (of course, it should be noted that a key sponsor of the federal anti-SLAPP law that was introduced last year is also a top Trump supporter
Right now, unfortunately, anti-SLAPP laws are state-specific, with some states having no such laws, and many having very weak laws. You can bet that if Trump's lawyers do sue, they'll do so in a state that has very weak or non-existent anti-SLAPP laws. But as Eriq Gardner at the Hollywood Reporter points out
, these constant bogus threats should be a wake up call for Congress to finally pass a strong federal anti-SLAPP law.
As many have recognized, if Donald Trump does bring a lawsuit against media outlets over their coverage of sexual assault allegations, it will hardly be resolved by Election Day. Many speculate that Trump will quickly drop such claims post-election to avoid a discovery process that would investigate the real truth. No one should fail to recognize, however, that the lawsuit itself is a form of bullying intended to give members of the media and other women pause before reporting about this public figure's fitness for office.
The only way to ensure that members of the media throughout the nation continue to be strong participants in civic affairs is to erect downsides to the filing of lawsuits. The U.S. Congress has such an opportunity and can discourage attacks on the First Amendment with a federal anti-SLAPP act that imposes penalties on frivolous lawsuits that cost money to defend and suck up judicial resources. It's time for lawmakers to act.
Indeed. Of course, expecting Congress to do anything right now is kind of ridiculous. It's not going to happen, even though it should.