What Trump has going for him is that in many cases where someone is outed as some sort of Bad Guy, no matter how true the overall picture is, there are always going to be assorted phonies/opportunists who jump on the bandwagon, along with the legitimate claimants. So what Trump can do is go after those specifically. Then he can claim that these were representative of the rest.
Not much to convince impartial observers. But it would give him something to stand on with his fans.
But then, doesn’t Trump also have to show damage to reputation - which if he were shown to act in a certain manner, and/or bragged about doing so, what reputation is there left to damage?
Regardless, the case comes down to he said/they said unless specific evidence surfaced later showing deliberate fiction or collusion. I guess the question is - what happens n the case of a “tie”? (i.e. no smoking gun proving one or the other) Where does “preponderance of evidence” fall in this case? I presume then damages would not apply… I assume you can’t allege a falsehood, fail to prove it, and collect damages.
I till think his major impetus in making the threat is to deter any possible additional accusers from coming forward.
He doesnt have to show jackshit in order to sue and make those poor women pony up thousands of $ for lawyers and be harassed endlessly in discovery.
That’s his pattern- he doesn’t sue to win in court- he sues to bully people.
If he does this too many times, might it be considered “SLAPPing”?
Only some states, IIRC, have laws that allow countersuit for SLAPP.
Which also bring up the question - in Canada, typically, I understand that the losing party pays the winner’s legal bills. Certainly (frivolous) lawsuits are a lot less common in Canada.
What is the criteria for being awarded legal costs in a US case?
I’m curious to what extent Trump could be overwhelmed on the legal front. Remember that he’s already got lawyers who are going to be busy dealing with the Trump University cases in California and New York, plus the various ongoing lawsuits relating to non-payment. If he adds a substantial number of libel suits on top of that, even Trump is going to start feeling the pain of legal costs.
Come to think of it, were I one of the Great Unpaid that would be a good time to file my own suit on the assumption that his legal resources must be getting stretched pretty thin.
The real goal is obviously not to win, it is to terrorize, bankrupt and humiliate anyone who criticizes him. I’m sure his motives is also to terrorize the endless dozens (possibly hundreds) of other women who he has sexually assaulted over the years into remaining silent.
Lawyers are offering to help these women for free, but what about after the election ends? Trump will still want revenge and those women will probably be left defenseless since there won’t be any fame in defending them for free anymore.
Why hasn’t any billionaire come forward and offered a fund to pay the expenses of these women (legal expenses, travel expenses, etc associated with the lawsuits)? Mark Cuban could spare five million to cover whatever expenses these women face from trumps wrath.
Well, fees and sanctions can be awarded against a party who submits a lawsuit for what is determined to be an improper purpose, contains frivolous arguments, or contains arguments that have no evidentiary support.
There’s probably some qui tam rule for fees, but I yield that question to someone who knows that area of the law.
Well (unless I’m mistaken), accusations of criminality and sexual misconduct are generally viewed as defamation per se, so that you do not need to prove damage to reputation (damage is presumed). I don’t actually know if that’s a rebuttable presumption. He would presumably need to show harm to recover damages, although I suspect that (1) nominal damages would be a sufficient victory for Trump and (2) punitive damages might be available.
But, even if he had to show actual damage: he says he boasted about grabbing and kissing women, but didn’t do it. I think it’s pretty clear from the reaction to the accusations that we view the idea that he actually did it to be worse than lying about doing it. The accusations look to me like they hurt his reputation, so (if they’re false) I think he has damages.
More interesting to me is whether the woman can argue that his reputation wasn’t damaged because he assaulted other women (even if he didn’t assault her). I don’t know how that would work. Typically putting on evidence of other bad acts would be barred, but I don’t know.
On your second question, actual truth is an affirmative defense. So the woman would have to prove that it’s true. A tie should go to Trump (subject to the harm question). There is a burden shifting for media reports of public concern (i.e., the plaintiff needs to prove falsity). Some states have expanded that to non-media statements of public concern, but I don’t think this qualifies. This is a specific allegation about the behavior of an individual from a person that should know.
The majority of courts to have considered the issue have now adopted the Hepps standard even in cases involving non-media defendants so long as it is a matter of public concern. And this would certainly qualify given that it is a central issue in a presidential campaign and that Trump publicly campaigned on the proposition that he did not commit these sexual assaults.
I have no basis to disagree with you (on either point), since I’m not expert in this area of the law. Although, I gather there’s a minority position.
But the principle seems odd to me. Allowing the media to report on public issues without putting the burden on the media outlet to prove the accuracy of the claim (for fear of chilling speech) makes sense to me.
But to expand that to a principle (in essence) that someone who levies an accusation of criminal behavior against a public figure cannot be liable for defamation unless the figure can prove the statement is false seems too broad to me. Although, thinking about it, maybe it’s just a logical extension of actual malice. To prove knowledge of falsity, I’d have to prove falsity. (It wouldn’t be enough to just have insufficient evidence of truth).
Anyway, as I understand it, GQ is not for debates on concepts, so I’ll concede the factual point.
I’m not sure how much it’s a minority position and how much it’s just that courts still nominally following the media/non-media distinction haven’t been pressed to consider the issue in light of the last three decades of precedents. I think the idea that there’s a First Amendment distinction between media and non-media is all but dead.
Precisely. In fact, that’s pretty much what Hepps said: “As a practical matter, then, evidence offered by plaintiffs on the publisher’s fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted.”
And Brennan’s concurrence in that case explains why the media/non-media divide is dying: “I write separately only to note that, while the Court reserves the question whether the rule it announces applies to nonmedia defendants, I adhere to my view that such a distinction is irreconcilable with the fundamental First Amendment principle that the inherent worth of speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual.”
I suppose that the distinction you’re offering isn’t so much media/non-media as it is someone with first-hand knowledge of the facts. I agree that there’s probably room for a distinction from Hepps there, though I’m not aware of a court having done it.
Could the first defendant not put on the stand a dozen other women who have similar stories as proof of “pattern of behaviour” by the plaintiff?
Even if “tie goes to the plaintiff” one would presume that a jury might consider the boasting enough to tip the “tie” in favour of the women. (Although it is dangerous to presume what a jury will do…)
This is a classic evidentiary problem in most jurisdictions that follow something like Federal Rule of Evidence 404. The general rule is that prior bad acts are not admissible to prove that someone is predisposed to commit such acts, but the exception is that they are admissible to prove a modus operandi. Whether the other stories of assault are sufficiently similar and probative, without being overly prejudicial and suggestive of an intent to prove bad character, would be a question for the trial court and is hard to predict in advance.
(Notably, in criminal cases, prior sexual assaults are categorically admissible for reasons that are somewhat suspect, but that doesn’t apply in civil cases.)
For the sake of others like me who had a hard time following that bit about Hepps above due to lack of previous knowledge, here is more about that case.
Of note also were comments by O’Connor that speech about public figures deserves more protection than does speech about private individuals.