Good Luck Mr. Trump, Here’s Why You Will Almost Certainly Lose Defamation Suit Against NY Times

screen-shot-2016-10-13-at-10-33-15-amThere was once a time when the threat, “I’ll sue you for defamation” meant something.   But for Donald Trump, that time has long since passed. Trump has become The Boy Who Cried Libel, and everyone knows it. Trump’s attorney made the latest demand for retraction and apology to The New York Times shortly after the Times published a story about two women who have come forward claiming that Trump sexually assaulted them.

For starters, if Trump were to initiate a defamation lawsuit based on his being falsely accused of sexual assault, it’d be customary for him to sue both the women who accused him and The New York Times for publishing their stories. If Trump actually had the ability to prove that he did not assault or harass these women (whatever magical evidence might exist to prove that such an action didn’t occur), then a lawsuit against the accusers themselves would be far easier to win than one against the Times.   Threats to sue Jessica Leeds and Rachel Crooks are conspicuously absent from Trump’s public blustering, which is more than a little telling. His PR team must know that while the public would devour a Trump v. New York Times lawsuit, threatening an extremely articulate and facially credible 70 year-old woman for describing Trump as an “octopus” isn’t going to go over well with voters.

In a lawsuit against The New York Times as a republisher of a “false” story, plaintiff Trump would have to prove not only that the allegations are false, but that the Times acted with “actual malice” against him when publishing them. That’s a pretty tough thing to prove. For Trump to prevail, it would be his burden to prove that the Times actually knew that the Leeds/Crooks stories were false, or that it published the story with reckless disregard for the truth or falsity of the women’s accusations.

So long as the journalists did some background research and interviewed Ms. Leeds and Ms. Crooks, it’s almost impossible to imagine that their work could be deemed a reckless disregard for truth. Absent some smoking-gun email from one of the reporters that says, “I was on that airplane and I know for a fact that Jessica Leeds is lying,” there’s not likely to be hard evidence about the Times’ state of mind. After all, the Times article merely reported what Ms. Leeds and Ms. Crooks said in interviews – not that their accounts were known by the Times to be true.

As plaintiff, Trump would bear the difficult burden of proving by clear and convincing evidence that he did not sexually assault Jessica Leeds and Rachel Crooks. I spoke today with Lin Wood, one of the highest-profile defamation lawyers in the U.S., who has represented Richard Jewell, the family of JonBenet Ramsey, Gary Condit, and Herman Cain.  Mr. Wood, who has significant experience suing media outlets on behalf of big-name clients, agreed that Trump would face some real challenges with his proposed litigation:

“Another problematic issue will be proof of falsity by clear and convincing evidence. On the face of it, that burden is considerably more difficult to meet in “he says/she says” cases. What witnesses or other objective proof exist to demonstrate that the accuser is lying? If that burden is met then the question becomes what evidence shows that the Times knew the statements were false or probably false? Those burdens of proof will be on Mr. Trump as the Plaintiff.”

And then there’s this:

I applaud Jerry Falwell, Jr,’s take on “evidence.” Falwell has now gone on record declaring that Donald Trump told him that he didn’t sexually assault anyone, and bragged that he had the e-mails to prove his innocence. Given the nature of the allegations against Donald Trump– groping on an airplane, kissing outside an elevator – there’s not likely to be physical or corroborative evidence of the truth or falsity of the women’s claims. But if Falwell is convinced, I guess that’s something. Whatever is in those emails is going to have to be pretty compelling to get a libel lawsuit off the ground.

In addition to the shaky legal grounds such a case would present, there’s also the inevitable fallout that would be caused by a Trump v. Times lawsuit. As Mr.Wood put it:

“A public figure plaintiff must also be prepared for “extreme vetting,” as discovery in defamation cases can be broad and very intrusive. Certainly, the Times would spare no expense in engaging in the discovery process against Mr. Trump under the circumstances. It is a classic media defense to smear the Plaintiff’s reputation in all areas to show that the statements at issue caused no real ‪damage to reputation.”

It’s been just over a week since the now-infamous Trump tape has gone viral; inviting an intense and invasive investigation of Trump’s behavior toward women just doesn’t seem like a good move for him.

Finally, the filing of a libel lawsuit against a media entity can be considerably dangerous for overly-litigious plaintiffs.  Many jurisdictions have “anti-SLAPP” statutes – laws which specifically prohibit the filing of lawsuits that are strategically used to censor, intimidate or silence critics by imposing the threat of legal defense fees. Under these statutes, plaintiffs filing frivolous lawsuits can be sanctioned if a court finds their claims to be abusive. Courts are suspicious of plaintiffs suing newspapers, and do not look kindly on rich litigants bullying innocuous defendants with threats of expensive litigation.

So let’s see… where does that leave us?

Trump has threatened to file a lawsuit that would be nearly impossible to win, and dangerous to file. He’d risk everything from legal sanctions to a public-relations nightmare, to exhaustive and damaging discovery; all the while, he’d be focusing on the wrong defendant.  I think Lin Wood said it best during our conversation today:

“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. False accusations are often part of the rough and tumble of politics and are best resolved at the ballot box rather than by a jury verdict.”


This is an opinion piece. The views expressed here are just those of the author.

Follow Elura on Twitter @elurananos

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