Republican presidential candidate Donald Trump exposes himself to interrogation under oath about his sex life and faces long odds against winning if he follows through on his threat to sue newspapers over reports that he groped multiple women.
The Supreme Court has erected a high hurdle to protect the First Amendment’s guarantee of freedom of the press that makes libeling a public figure all but impossible, short of publishing items known to be untrue. The 70-year-old Trump is nothing if not a boisterously public figure.
And while litigation could still cost The New York Times and other newspapers plenty, and by design scare off some other reporters, it could also ricochet against Trump himself.
“A public figure plaintiff must . . . be prepared for extreme vetting, as discovery in defamation cases can be broad and very intrusive,” said attorney L. Lin Wood, whose clients have included former California Congressman Gary Condit. Condit’s sex life was the subject of much media coverage in the months after a woman he was having an affair with, Chandra Levy, went missing. “Certainly, the Times would spare no expense in engaging in the discovery process against Mr. Trump under the circumstances.”
Even if he doesn’t pull the trigger, though, Trump’s threat puts a spotlight on how libel law works, including the use of lawsuits for strategic purposes and what some legislators are doing about it.
A New York City-based attorney representing Trump, Marc E. Kasowitz, put The New York Times on notice with a letter late Wednesday demanding the retraction of a story titled “Two women say Trump touched them inappropriately.”
In the absence of compelling evidence of falsity and actual malice, this type of dispute is usually best litigated in the court of public opinion than in a court of law.
L. Lin Wood, attorney
The Times’ article, posted online Wednesday night, recounted in considerable detail two women’s stories of Trump kissing and groping them against their will many years ago.
“Your article is reckless, defamatory and constitutes libel per se,” Kasowitz wrote, adding that the paper’s refusal to retract the story “will leave my client no option but to pursue all options and remedies.”
Eileen Murphy, a spokeswoman for The Times, said in a statement Thursday that “we stand by the story, which falls clearly into the realm of public service journalism.”
The New York Times’ general counsel added in a letter to Kasowitz on Thursday that “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.”
Educated at Yale and Cornell Law School, Kasowitz is described on his firm’s website as “one of the pre-eminent trial lawyers in the country.” He specializes in business, not the First Amendment; of 21 cases highlighted on his webpage, only one cites defamation as a key issue.
Kasowitz’s current defamation case, a complicated matter involving two very wealthy men, is working its way through a court in Palm Beach, Florida.
If Trump and Kasowitz follow through on the implied litigation threat against the Times or other media outlets that have reported on Trump’s alleged mistreatment of women, they will face a big test imposed by the Supreme Court.
In a 1964 case called New York Times v. Sullivan, involving an Alabama commissioner unhappy over a factually flawed ad placed by civil rights advocates, the court set a high bar for public officials who claim to have been defamed. The court ruled that officials must prove “actual malice,” which means the media made the harmful statements knowing they were false or with reckless disregard for whether they were false.
Then, in a 1967 case involving highly decorated former Army Maj. Gen. Edwin Walker, the court extended the hard-to-overcome “actual malice” standard to cover public figures as well as public officials. The former star of television’s “The Apprentice,” Trump was a quintessential public figure long before he entered politics.
“Recovery by Mr. Trump against The New York Times would be extremely difficult,” said Rodney Smolla, dean of Widener University’s Delaware Law School. “The burden of proof would be on Mr. Trump to prove that the allegations against him are false.”
Smolla, who represented Gary Condit’s wife in a defamation suit against the National Enquirer, added that “it would be Mr. Trump’s burden to prove, by clear and convincing evidence,” that the Times’ behavior met the actual malice standard. Carolyn Condit’s suit was settled.
Even in the face of such long odds, Trump has previously filed defamation suits, including a $5 billion claim in 2006 against a book author who Trump said had understated his wealth.
The lawsuit was eventually dismissed, but not before Trump was forced to answer questions in a two-day deposition whose transcript spanned 170 pages.
Trump told The Washington Post he had directed his lawyers to sue the author on the theory that it “will cost him a lot of money.”
These kinds of legal actions are sometimes called strategic lawsuits against public participation, or SLAPP suits. New York and more than two dozen other states have enacted laws designed to keep SLAPP suits in check.
“There is the downside of potential liability for fees and costs if the case is readily dismissed depending on the forum’s anti-SLAPP statute, if any,” Wood noted. “Lawsuits intended solely to strategically discourage public speech on a matter of public concern are generally frowned upon by the law.”
California-based attorney David Dizenfeld, for instance, noted that one of Trump’s businesses, Trump University, was ordered last year by a federal judge in California to pay $798,000 in legal fees to a former student under the state’s anti-SLAPP law.