Friday, October 14, 2016

Trump, staff, and surrogates are illegally defaming private individuals accusing Trump of assault

Not a defamation specialist, but -

Falsely labeling people as liars in public media is an obvious damage to their reputation, so the only remaining question is whether the people calling these women liars had any obligation to look for the truth before they made the statements. I'll assume here they did one of two things:  no investigation at all/just started calling the women liars, or that they asked Trump in general if anything like this happened and he said no.

Proving defamation against a public figure is hard, you have to go beyond being stupid or incompetent in your attack. Defamation against private figures means the lower bar of negligence - if you did not meet a reasonable standard of care in making your statement, then you've committed defamation. Doing no research at all before make false claims is clearly defamatory against private figures (and I think probably against public figures too); doing only a little research is a gray area.

Some of Trump's accusers are undoubtedly private figures (woman on the plane, the staffer in his office building). Some are more borderline (the journalist, the beauty pageant contestant), but even the borderline ones aren't public political/mass media figures. Regardless, the negligence standard applies in at least some cases.

I think a cursory question to Trump:  "Did you ever do this stuff? No? Great, we're just going to call them all liars no matter the number of accusers, their details, or their personal credibility" isn't enough to be non-negligent. There was plenty of information indicating otherwise prior to the Trump-Billy tape, plus the tape, plus each credible accusation afterwards in sequence, all making the blanket claim that all the women are liars to be defamatory.

The ones who should be suing for defamation aren't Trump and his ludicrous threat to the NY Times, it's these women against Trump, the campaign, his staffers possibly, and definitely his surrogates for lying about them.

The barrier against winning is the he said/she said nature of the claim, but discovery and relative credibility of Trump and his accusers can put that to the test.

Legally you'd want to wait to get your ducks lined up. Politically it would be great to get the complaints filed ASAP.


CapitalistImperialistPig said...

Unless Trump gets elected and abrogates the Constitution (an elitist plot if there ever was one) I expect him to get a chance to back up his claims under oath.

metzomagic said...

I had said to my friends and colleagues a few months back that The Donald would do something so stupid as to make himself unelectable sometime before the election. It's nice to get a call right every one and a while, on a certain level that is. OTOH, it's not a dead cert yet, so we must wait and see.

That a stab at the presidency should have got this far by such an individual as The Donald, so far into the 21st century, is a sad comment on the current state of affairs in America. But the powers that be in the Rethuglican party must be secretly delighted. Imagine that he somehow managed to become the POTUS, and they had no control over him?! Puppets without strings can be dangerous.

Bob Loblaw said...

As the news continues to break, my thought reading this is that such a lawsuit against Trump could possibly become a class action suit....

Kevin O'Neill said...

metzo - it is indeed sad that DT will get more than a handful of votes, much less actually win some states. I blame it all on false equivalence and the national media. For 40 years we've seen the national media unwilling or afraid to simply call one side in a political battle misinformed, simply wrong, or lying. Paul Krugman calls this 'opinions on shape of the earth differ' journalism. Yep, they do -- and those who think it is flat aren't very bright.

The already bad situation was exacerbated by the likes of Faux News. If national news organizations had any interest in reporting 'truth' they'd each donate a pool reporter to produce daily rebuttals of the crap put out by Faux and the leading disinformation sites that comprise the rightwing noise machine.

Of course none of this would be possible if a sizeable number of Americans weren't predisposed to believe anything. Think of the lamest political conspiracy-nut email chain letter you've ever seen and then reflect that millions of Americans accept that kind of stuff without a second's thought that it might be untrue.

One could wish that this was some sort of subtle disease that has eluded detection, but has a simple antidote once diagnosed. Unfortunately I think that wish will be forlorn. I fall back on Huxley:

“The leech's kiss, the squid's embrace,
The prurient ape's defiling touch:
And do you like the human race?
No, not much.”

Well, at least not 35 to 40% of it.

Russell Seitz said...

The plaintiff's infamy demands that we try harder-


Fernando Leanme said...

The legal case would depend on whether the people badmouthing the Donald can prove he did what they claim. Otherwise this can be considered an exchange of insults. What happens if somebody says you did this or that and you respond "the honorable missus isn't telling the truth". Can the missus file a slander suit? I doubt it.

If I may add, you guys seem obsessed with writing about the Donald. I have to confess even I wrote a couple of things about the elections. But what I write is calibrated carefully to avoid being sued by the candidates, or having the CIA pay me a visit after they get elected to punish my writing behavior.

Bryson said...

Now that we've seen the Trump campaign's promised proof that all these accusers are lying, maybe Fernando will reconsider his caution about this issue... (The skinny is that they have brought forward a "witness" who claims to have been on the flight and in the first-class cabin where Jessica Leeds claims Trump groped her. The "witnesses'" name is Anthony Gilberthorpe, and I've put the words "witness" and "witnesses'" in quotes because he is a known serial fabulist (like attracts like, one supposes).

Fernando Leanme said...

I prefer to remain very cautious. I already had a CIA tail 29 years ago in Congo (lucky for me the guy got drunk and started crying as he confessed they thought I was working for the Cubans who were Soviet proxies, a mercenary army fighting for the communists in Angola). I let him go with a warning to stop wasting my tax dollars, and it seemed to work because afterwards we only had to worry about Stasi listening devices in our offices.

Given Hillary's threat to use a drone on Snowden (or was it the wiki leaks dude?) I feel it's safer to be carefully neutral. I have my hands full with Cuban and Venezuelan agents searching through my garbage bags. Those suckers even jump into the segregated plastics container.

Hank Roberts said...

Maureen Dowd said the NYT"s lawyer put it this way:

He admitted doing it. We've just provided the evidence.

Jeffrey Davis said...

I imagine the accusers would have a better chance of getting a private individual's reading of the libel law if they didn't allow their accusations to be part of a political campaign. They can't control a lot of that, but appearing in a press conference or something would be right out. Once you leap into the public fray, you're a public figure.

I don't even have an internet GED in law. My idea is pure guess.

nowadaysclancycantevensing said...

is Fernando really Gilberthorpe?

Brian said...

Jeffrey D: what constitutes a public figure isn't well defined, but I think it usually requires more than one-timr public exposure.

Chris_Winter said...

Yes, Mr. Gilberthorpe isn't very credible.

If he's the best Trump has got, he hasn't got much of a defense. Also, in the Access Hollywood tape, he's admitted to doing the same kind of thing. Arguably, that was empty boasting. But two women have charged in a California case that he raped them when they were underage, and now we have the six (?) who've come forward with stories of being groped by him. We'll see how it plays out, but I expect their credibility to outweigh his.

Jeffrey Davis said...

Brian, didn't Michael Mann qualify as a public figure? He only published some straight scholarly works that attracted the attention of the media. Willingly entering a political fray seems more "public" than getting interviewed for a news article.

The public figure standard doesn't seem on Trump's side here, though. If the accusations are true, he knows that they are. And so on.

Russell Seitz said...

As the former Attorney General of Virginia can testify, a rising tide lifts all ducking stools.