This post was inevitable. I’ve been writing about defamation law on this blog for years. Back in July 2010, for example, I explained why Mark Zuckerberg wouldn’t sue the makers of The Social Network, and he didn’t. In 2012, I said Michael Mann’s claim against the National Review was “non-frivolous,” but that it was a difficult question as to whether it could proceed – and three years later the Washington Post said it seemed “the court may be having some difficulty” deciding it, and the case is still stuck. Earlier this year, I spelled out the legal issues in the Hulk Hogan v. Gawker trial, based on the lawyers’ own briefs.


Now Donald Trump, faced with an onslaught of sexual assault allegations — essentially alleging that he committed the sexually aggressive behavior he bragged about in the 2005 Access Hollywood tape — has started threatening to sue for defamation. Funny coincidence: years ago, I met New York Times Assistant General Counsel David McCraw, who wrote the paper’s response to Trump. He told me the New York Times hasn’t paid a dime on a defamation case in fifty years, and they’re not going to start any time soon. I’m pretty sure that is still true today and will be true for years to come.


When a lawyer writes a letter for public consumption, it looks like Donald’s letter. When a lawyer writes a letter as a prelude to a lawsuit, it looks like Melania’s letter. Donald Trump hasn’t sued a newspaper for libel in thirty years, but Melania did just last month. As I’ll explain below, it looks like Donald Trump is just blowing smoke for show – perhaps he’ll file a lawsuit now then dismiss it after the election – but Melania Trump’s lawyer, the same lawyer who represented Hulk Hogan against Gawker, is using the same strategy he did in that case to position her for a similar outcome.


The Basic Law


First, as explained over at PopeHat, Trump isn’t “libel-proof.” Trump has, of course, made many, many statements that would impute to him a reputation for sexual aggression. There’s the “braggadocious remarks about sexual assault he made to Billy Bush. There’s the disgusting remark he made after seeing a ten-year-old girl that he’d be dating her in ten years. The list goes on and on. That still isn’t enough for a court to hold, as a matter of law, that Trump’s reputation could not possibly be harmed by particular allegations of sexual assault.


Second, an accusation of sexual assault is quite clearly “defamatory.” In common parlance, “defamatory” often includes an implication that a statement is false, but legally the concepts of defamatory and falsity are separate issues. Trump could end up suing in a lot of jurisdictions, but, because he lives in New York, we can use an example from New York law of what makes a statement “defamatory:”


Plaintiff can only recover damages on her defamation cause of action if she can establish that the article was in fact defamatory—tending “to expose her to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society. (Ava v NYP Holdings, Inc., 64 AD3d 407, 412 [1st Dept 2009]) (internal citations omitted). Unless the court can say, as a matter of law, that the statement could not have had a defamatory effect, it is for the jury to decide whether or not it did (Armstrong v Simon & Schuster, Inc., 85 NY2d 373, 380 [1995]).


De Clercq v. Time Inc., 2015 NY Slip Op 30489. In that case, the plaintiff was allowed to proceed with a defamation claim arising from the suggestion that they were “unchaste” and had engaged in “sexual misconduct or promiscuity.” The allegations against Trump are that or worse.


The Technical Stuff


Trump’s lawyer, Marc Kasowitz, wrote a letter to the New York Times requesting a retraction and apology. I emphasize “to the New York Times” because, as of yet, Trump has apparently not threatened to sue either of the women named in the article who made the accusations. That’s a critical distinction: for Trump to win against the New York Times, he’d have to do much more than simply convince a jury that he was right and the women were wrong. The issue was undeniably a matter of “public concern,” because Trump is a public figure and because Trump specifically denied any such conduct at the second presidential debate, and so Trump would have to prove that the New York Times acted with “actual malice” in publishing the accusations.


As the Supreme Court has recognized, “actual malice” is an “unfortunate” phrase that “can confuse as well as enlighten.” Masson v. New Yorker Magazine, Inc., 501 US 496, 510 (1991). It doesn’t mean “an evil intent or a motive arising from spite or ill will,” but rather “publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity.” Id. Given the depth of the New York Times’ reporting, in which they interviewed multiple people with a contemporaneous recall of the accusers making the same accusations to them, it seems doubtful to me that Trump could ever prove the New York Times acted “with knowledge of falsity or reckless disregard.” What more should the New York Times had done? Notably, Trump’s lawyer doesn’t say – nor does Trump’s lawyer even specify which statements in the article were false.


In contrast, the letter that Melania’s lawyer sent to People magazine is exceedingly specific about the allegedly false statements:


  1. “That winter, I actually bumped into Melania on Fifth Avenue, in front of Trump Tower as she walked into the building, carrying baby Barron.”
  2. “‘Natasha, why don’t we see you anymore?’ she asked, giving me a hug.”
  3. “I was quiet and smiled, telling her I’d missed her, and I squeezed little Barron’s foot.”


These seem trivial, don’t they? That’s the point. They’re not “matters of public concern.”


What I find most interesting about the letter from Melania’s lawyer is that it does not claim the statements are defamatory. The words “defamation,” “libel,” and “slander” don’t appear in the letter. Rather, the letter says the statements “are false and completely fictionalized,” which makes them “actionable.” It would seem that Melania’s lawyer, Charles Harder, is taking the same approach that he did in the Hulk Hogan case: the claim isn’t for defamation, but for something else. Intentional infliction of emotional distress? False light? Any one of these could be the claim. False light, for example, doesn’t require proof of an explicitly false statement in the same way as defamation, but rather proof that the plaintiff was put in a “false light that would be highly offensive to a reasonable person.”


The Bigger Picture


It appears Melania is aiming to repeat the successful strategy in the Hogan case: by using one of these other claims, and by avoiding the allegations about Donald’s conduct, Harder is trying to avoid the “public concern” issue, and thus also avoid the First Amendment protections. If a statement isn’t about a “matter of public concern,” then the “actual malice” standard doesn’t apply. Melania can then sail through like Hogan did, proving merely “negligence” and not “knowledge of falsity or reckless disregard.”


It’s a savvy legal maneuver, and it might work, allowing Melania’s claim to sail past First Amendment protections to a jury verdict. I leave to others to discuss whether any of this is good for our democracy.