Donald Trump is, predictably, unhappy with a New York Times story in which two women allege that Trump sexually assaulted them, one in the 1980s and once in 2005. And just as predictably, he’s sicced his lawyers on the Grey Lady. Lawyer Marc Kasowitz wrote to the Times:
“Your article is reckless, defamatory and constitutes libel per se … We hereby demand that you immediately cease any further publication of this article, remove it from your website and issue a full and immediate retraction and apology. Failure to do so will leave my client with no option but to pursue all available actions and remedies.”
To anyone who thought about it, this was never going to go well. The New York Times, famously, does not settle defamation or libel cases. It has a long-standing principle to fight every action in court, which discourages frivolous lawsuits.
Secondly, it is extremely difficult for public figures in the United States (and it would be difficult to argue that anyone is more public right now than Trump) to win defamation cases, with the Times v Sullivan Supreme Court ruling establishing the principle that the First Amendment protection of free speech is more important than an individual’s right to sue. The Supreme Court ruled in 1964 that: “The First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity)”.
So Trump would have to prove that the allegations were false, that the Times knew they were false at the time of publication, and that it published them anyway for reasons of actual malice. It is an extremely high bar to clear, and the burden of proof is on the plaintiff.
Thirdly, Trump would also have to prove that these allegations damaged his reputation. And given he is on tape bragging about groping women, it is hard to see what case he could make. The Times‘ response can best be summed up as: “Come at me, bro.”
“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 room. He acquiesced to a radio hosts’s request Mr Trump’s 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 …
“If Mr Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”
— Cass Knowlton