“Defaming” Donald Trump – With the Truth
But Then “Apologizing” – With a $16 Million Settlement
As we all know – we learned this in grade school – one of our country’s great principles and prides is freedom of expression (speech AND press). It was only relatively recently, however, that the inherent conflict between those First Amendment freedoms, and lawsuits for defamation, was recognized in the seminal case of New York Times v. Sullivan (1964).
Donald Trump has apparently found a different lesson in American law: In his words and actions he has constructed a governing counter-principle: that the mainstream press he hates is “the enemy of the people!” And that any publications he does not like or agree with are: “fake news!”
Donald Trump is not yet President. But he is already dominating the news. And succeeding in sucking the oxygen out of vast stretches of our American public discourse.
Unfortunately, the recent $16 million ABC News libel settlement with Donald Trump (see below) goes a giant step in the direction of ceding back yet more truth-free territory to the incoming President.
Trump’s view of the modern (post-Sullivan) law of defamation is consistent with his attitude toward the “mainstream” media. As he announced early in his first Presidential campaign at a Ft. Worth, Texas rally, in February of 2016.
Trump predicted that when he’s President “dishonest” newspapers (his stated examples: The New York Times and The Washington Post) are going to “have problems.” He continued: “I’m going to ‘open up our libel laws’ so when they write purposely negative and horrible and false articles, we can sue them and win lots of money … instead of having no chance of winning because they’re totally protected.”
And then for emphasis he repeated: “We’re going to open up libel laws, and we’re going to have people sue you like you’ve never got sued before.”
It’s not that Trump really needed an excuse to see the world in this fashion. Dating back to well before his first Term in office, he had already succumbed to the siren song of hyper-aggressive litigation. You might say he was it’s godfather – at least after Roy Cohn had passed – and at least with respect to the media!
And now, almost certainly emboldened by the recent ABC settlement, Trump – and many of his picks for appointments during his second Term – are presumably already gearing up for litigation – from the highly-aggressive proposed FBI Director and on up and down Trump’s list.
The ABC Settlement
ABC’s $16 million settlement with the President-elect has been the source of much controversy and disagreement in part over the legal distinction between rape and sexual assault. It includes $15 million paid to Donald Trump’s presidential library and $1 million paid to cover Trump legal fees.
Last year a jury specifically found the former President liable for “sexual assault” but not for “rape”. However, presiding Judge Lewis Kaplan actually had occasion to state on the record that – as the term “rape” is generally understood – the jury actually did find that Trump had “raped” Jean Carroll – forgive the detail – because, according to the Judge, they found that Trump had digitally penetrated her vagina.
Nonetheless, ABC – or at least someone at its parent, Disney – decided to ignore that important distinction and, on that basis, not to continue to defend a clearly defensible case.
Leaving the overriding question at hand: was Disney wise to abandon its seemingly strong defense, to concede liability, and to pay a very substantial, multimillion dollar sum to the President-elect? And would such a settlement buy peace? Or yet more contention and risk?
Here’s my opinion: When it comes to claims of defamation, we should NOT give the President-elect an inch. He’s already taken miles. And he will take more if we let him!
Every day, in every way, it becomes clearer that the incoming President intends to lay claim to every inch of territory, on every possible front, in advancing his radical vision for a 2nd Term – notwithstanding the traditionally-recognized limitations of the American Presidency – against which he instinctively labors.
Overreaching defamation claims are a case in point. As to which Trump has a long and inglorious track record.
Just A Sampling of Trump’s Extensive – Most Often Losing – Record as a Litigant Against the “Free” Press and Related Claims:
- Trump v. TrumpNation, Timothy O’Brien and Warner Books (2006-11): The book estimated that Trump’s net worth was only $150-$250 Million at a time when Trump was claiming multi-billions! Trump’s self-aggrandizing claim that he had been defamed by the underestimate was dismissed at the summary judgment stage and affirmed on appeal.
- Trump v. Trump University student for defamation ancillary to NYS Attorney General investigation of Trump University. Allegedly defamatory statements had been published by the student on social media. Case dismissed and Trump ordered to pay the student and her attorney just under $800,000 in legal fees and costs. (2015)
- Trump Campaign v. The New York Times for defamation in opinion pieces published commenting on the Times’s (and Post’s) in-depth investigation into Trump finances. The series won a Pulitzer Prize. Case dismissed in the NY Times’s favor “as a matter of constitutional law.” Trump ordered to pay the NY Times’s legal expenses and costs.
- Trump v. Washington Post (2019-20). Florida defamation action against the Post based on two opinion articles published in 2019 suggesting that the Trump campaign had benefited from Russian assistance during the 2016 election. This Florida action was dismissed on legal grounds.
- Trump v. Hillary Clinton and certain FBI officials for “racketeering” (2023). Case dismissed and just under $1,000,000 in sanctions assessed against Trump and his attorneys based on “a continuing pattern of misuse of the courts by Mr. Trump …” The judge characterized the now President-elect as “a prolific and sophisticated litigant who is repeatedly using the courts to seek revenge on political adversaries.”
- Trump v. Orbis Business Intelligence (and Christopher Steele) in connection with damages alleged to have resulted from the so-called “Steele dossier.” Case filed in the U.K. (2023) This March Trump’s case was thrown out and he was ordered to pay at least $382,000 in costs (costs that may ultimately increase to double that amount.)
- Trump v. the Pulitzer Prize Board in relation to the Board’s refusal to withdraw the Times’s/Posts Pulitzer prizes. Most recently (July 2024) a senior circuit judge in Florida denied Pulitzer’s motion to dismiss. So the case will move into a discovery phase.
- Trump v. CNN (2023): $475 million defamation action in 2020 by Trump based on CNN’s use of the term “big lie” and its alleged association of that terminology with Hitler. Trial Judge grants CNN motion to dismiss based on constitutional protection for “opinion.”
- Trump v. CBS and 60 Minutes (2024): Trump claimed that CBS had favorably edited its national campaign interview with Presidential-candidate Kamala Harris. Among other things, Trump said that CBS should lose its broadcast license over the incident. No further action taken to date.
- Trump v. ABC (2024): This is the case now at hand. Trump sued ABC for defamation based on broadcast statements claiming that Trump had been found guilty of “rape” in the E. Jean Carroll criminal case, when the jury’s verdict appeared to find Trump to be guilty only of “sexual assault.” Case settled by ABC for a payment to Trump of $15 Million plus $1 Million for attorneys’ fees. (And see further discussion and critique of the case, passim.)
- Trump v. Des Moines Register (2024): perhaps inspired by the lucrative settlement in the ABC case, just last week Donald Trump commenced legal action under Iowa’s consumer fraud law and for “brazen” election interference. This all based on one erroneous pre-election poll – by a highly-respected local pollster – predicting a Trump loss in Iowa. Of course, Trump won Iowa! And he won the 2024 Presidential election!
We have a limited Presidency if we can keep it. Our term-limited President was never supposed to be a King!
But based on Donald Trump’s repeated history, defamation is not a front on which the press – Trump’s “fake” media/ and “enem(ies) of the people” – should be quick to voluntarily retreat.
Whatever else happens over the next four years – years that it’s fair to envision may be challenging for the mainstream media, to say the least – my point is to urge that those who can afford to resist should seriously and systematically carve out a space in the area of defamation that the 47th president will be unable to occupy and command.
And that includes any attempt by the incoming President to change the legal landscape when it comes to First Amendment protections, especially in relation to defamation and similar suits, meant to suppress free speech critical of the President-elect and his allies, and to generally intimidate all speakers with opposing views.
So please. Please do not further aid or abet the carving out of a defamation-free-zone for Donald Trump and his litigious bullying.
And in this, you will not inherently become an “enemy of the people”. Or a purveyor of “fake news”. But rather, at least in this observer’s humble opinion, quite the opposite!
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