By GARRICK FELDMAN
Leader executive editor
Donald Trump has been threatening to sue The New York Times for printing allegations that he groped several women going back 30 years.
Trump told a rally in West Palm Beach, Fla., on Thursday the charges are “total fabrications” and then threatened to put The Times out of business.
Trump’s lawyer fired off a letter after the article appeared online, saying it was “libel per se.”
The newspaper stood by its report, saying Trump didn’t have much reputation left to defend. “You ask that we ‘remove it from (our) website and issue a full and immediate retraction and apology.’ Wedecline to do so,” The Times’ attorney, David E. McCraw, wrote back.
The response by McCraw is an instant classic defending a newspaper’s First Amendment right to print the truth as we see it. The letter will be taught in journalism classes as long as there is a free press in this country.
“The essence of a libel claim, of course, is the protection of one’s reputation,” McCraw wrote. “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….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.”
It’s unlikely Trump will sue because he has no chance of winning. A discovery process before the case goes to court would bring out more sordid charges against Trump.
Will he also sue People magazine, whose reporter this week said he assaulted her a decade ago during an interview in Trump’s Mar-a-Lago estate in Palm Beach?
Will Trump sue the Palm Beach Post because it ran an article this week about a woman who said she was also groped during a photo shoot at the mansion 13 years ago?
Melania Trump has threatened to sue the People reporter, insisting she had never met the writer.
Will the Trumps sue every publication, TV station and online site that reported a series of other allegations, including beauty pageant contestants who confirmed Trump’s boast on the “Access Hollywood” audio that he barged in on naked women in dressing rooms at the pageants he once owned?
Will he sue “The Apprentice” contestant who said Friday he assaulted her in a hotel room?
Even if Trump could show he’s completely innocent — which is unlikely as more women come forward every day — he’d have to convince a court that The New York Times and other media fabricated the story with “malicious aforethought,” an impossibly high hurdle for public figures to prove.
That’s because in a landmark libel case in 1964, “The New York Times vs. Sullivan,” the Supreme Court rejected a claim by an Alabama state police commissioner that The Times had libeled him for printing an advertisement placed by civil rights advocates that included trivial mistakes, such as the number of times protesters were arrested and what songs they sang at the protests.
The suit was preposterous — Sullivan was never mentioned in the ad — but the high court ruling strengthened the First Amendment and the right to a free press. Another decision three years later set a high threshold for libel not only for public officials but also for public figures like Trump if they wanted to sue.
As we know from personal experience at The Leader, anybody can sue, but you cannot win a libel case against a newspaper for printing the truth. A couple of officials tried, but they didn’t get very far:
One Cabot court clerk sued The Leader for reporting that auditors found cash missing from her office. She dropped her lawsuit after she confessed she had stolen the money and made a plea bargain to return the money. We paid a modest fee to our lawyer, who defended us almost pro bono — a small price to pay to protect freedom of the press.
A federal prosecutor a few years later threatened to sue us after we wrote about his unsavory relationship with a former Lonoke police chief. The prosecutor’s threat backfired: He was quickly demoted, took early retirement and never filed suit.
Trump is notorious for filing lawsuits against anybody who criticizes him, including an author who said Trump was exaggerating his wealth, as well as a beauty pageant contestant who made fun of him on Facebook.
But states have passed laws in recent years protecting victims of frivolous lawsuits by billionaires who want to bankrupt their antagonists. These laws were passed to discourage so-called “strategic lawsuits against public participation,” or SLAPP. A federal judge in California recently ordered Trump University to pay a former student $798,000 in court costs under the state’s anti-SLAPP law.
Trump told a Florida rally this week to remember to vote Nov. 28. He had his dates mixed up. The election is Nov. 8. Trump University’s fraud trial starts Nov. 28.
