What if the Cruz Sex Allegations Are False? What it Could Mean Legally

The National Enquirer story alleging that Republican Presidential candidate Senator Ted Cruz had extramarital affairs with five women has had the internet buzzing. Some claim to know who some of the women supposedly are, but, of course, there has been no confirmation that the story is true. Cruz went on the record on Friday, saying that the story is “garbage.” He was also quick to place blame. Cruz said that the story “is a smear that has come from Donald Trump and his henchmen,” backing it up by referencing Trump’s earlier personal attacks on Cruz’s marriage, implying that they had dirt on Cruz’s wife.

With all the questions about whether the story is true, it’s important to realize what the legal ramifications could be for publishing such an inflammatory story. Depending on the the facts behind it, there could be a defamation case.

Defamation can take one of two forms. For printed statements, it’s libel, and for spoken statements, it’s slander. In order to prove a case for either of these, you need to show the following:

  1. That the statement is false. No matter how damaging the sex scandal may be, if the story is true, Cruz wouldn’t have a case.
  2. It has to be made public to someone other than the person who said it and the person it’s about. Publishing it in the Enquirer for the world to see certainly satisfies this requirement.
  3. The defamatory statement has to be someone’s fault, and you have to show whose fault. Since the Enquirer published it, it would be their fault for getting it wrong.
  4. The statement actually caused harm. This one could be tough to measure. If Cruz’s poll numbers drop dramatically and his campaign enters a downward spiral, that could be an indication that he was harmed by the story, but the defense could be that it happened for other reasons. If Cruz ends up winning the nomination, it would be tougher to argue that he was harmed. Unless, of course, his marriage suffers, in which case that Cruz could argue that he suffered harm.
  5. Now, for regular people, all you need are the four previous elements. But for public figures like Cruz, he would have to prove that the statement was made with “actual malice.” This extra requirement came about in the landmark 1964 case New York Times v. Sullivan, which said that the lives of public officials are of public concern, so if a false statement was made by accident, it’s not a problem for the Enquirer. Cruz would have to show that the Enquirer knew or should have known it was false. If they did and ran it anyway, that could spell trouble for them.

But what if the story is a hoax and the Enquirer truly believed it was legit? In that case, they’d probably be off the hook, but what about the person who gave them the information? If he/she knew or should have known it was false, that person could be guilty of defamation, because even though he/she didn’t publish it for the world to see, he/she still told it to someone other than Cruz, specifically the Enquirer reporter.  However, if the statement to the Enquirer was spoken, it would be slander, not libel.

Now what if the story is completely true? Here’s where it gets interesting. Cruz went on record, saying the story was “garbage,” blaming “Donald Trump and his henchmen” for spreading it. Cruz saying that Trump was spreading lies could in itself be a defamatory statement, because if the scandal is true, then Cruz knew that his own words of denial were lies (although he could still be right that Trump directly or indirectly pitched the story).

But again, that would only be if Trump could prove harm, and the way Trump’s campaign has been going, just when you think something will slow him down, he just keeps on going.

[Image via Screengrab]

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