The reports that Donald Trump is threatening (promising?) to sue the NY Times over the account it published yesterday about his alleged sexual assaults first reminded us of one of our favorite films of the 1980s – “Absence of Malice” starring Paul Newman and Sally Field (directed by Sydney Pollack) – and then got us to crack open the law books and review the landmark Supreme Court decision in New York Times Co. v. Sullivan in 1964.
The NY Times article concerns two women who claim Trump touched them “inappropriately.” One woman claimed Mr. Trump was “like an octopus”, putting his hands all over her; and another woman claimed Trump kissed her on the mouth when introducing himself.
So does this story cross the legal limits?
Let’s start with the basics. Defamation is the broad term that encompasses both libel and slander; it broadly means any statement that hurts someone’s reputation. The difference between libel and slander is slight, but libel is generally a published false statement that damages someone’s reputation, whereas slander is a spoken false statement that damages someone’s reputation.
Where it gets more challenging is when the allegedly defamed person is a public figure — as opposed to a private figure. For a private figure (someone who is out of the public eye) to prove defamation, they essentially need to show that the publisher was negligent in publishing the story (a low standard). However, for a public figure, the legal burden is much higher. A public figure must prove actual malice, meaning the statement was published with knowledge that the information was false or with reckless disregard for whether the statement was false or not. This standard comes from the landmark New York Times Co. v. Sullivan case.
So does Donald Trump have a legal leg to stand on?
The New York Times published the article based on the stories of two women that communicated with the New York Times. To the best of our knowledge right now, the New York Times was not aware that the information is blatantly false. Additionally, the Times likely did not publish the story with reckless disregard for the truth – especially given the numerous women coming forward with similar claims, and the surfacing of the now-infamous “…when you’re a star……[y]ou can do anything……grab ’em by the p***y” tape released last week. Even if the stories of the two women turn out to be false, we believe it will be extremely difficult for Trump to win his case.
In fact, the Times’ general counsel has already advised Trump’s lawyer that the Times will not retract its story: “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.”
Finally, Trump’s threat to sue the Times may be just a bluff or idle threat. According to a report published by Reuters today, Trump hasn’t actually sued a paper for defamation in decades – although he has repeatedly promised to over the course of his career. Reuters reports that it searched databases of federal and state court records to arrive at this conclusion. According to Reuters, the last time Trump filed a defamation lawsuit was more than 30 years ago – in 1984 – when the Chicago Tribune’s architecture critic wrote that Trump’s proposed 150-story tall Manhattan skyscraper was an “atrocious, ugly monstrosity”. The next year the judge who heard the case dismissed the lawsuit. Why? The Tribune and the critic had a First Amendment right to express their opinion about the building.
Will Trump actually file and win a lawsuit against the Times? Stay tuned.