# Out of Curiosity: Could Donald Trump Win a Suit Against Rosie O'Donnell? **URL:** \ **Category:** Factual Questions\ **Created:** [December 22, 2006, 6:02pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253 "2006-12-22T18:02:46Z")\ **Posts on this page:** 18\ **Page:** 2
**Author:** ![Sampiro](https://avatars.discourse-cdn.com/v4/letter/s/2acd7d/32.png) [@Sampiro](https://boards.straightdope.com/u/Sampiro)\ **Post date:** [December 23, 2006, 11:01pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/21 "2006-12-23T23:01:37Z")
[QUOTE=Revenant Threshold] I believe that Trump _could_ sue if this had been in Britain. I don’t think it would be hard to suggest O’Donnell convinced some of her viewers that Trump was a worse person than he actually is. [/QUOTE] Yeah, but Trump convinced some of his viewers that O’Donnell is fat and obnoxious and not as brilliant as she thinks she is. Oh… wait… I have to say that while they’re true I thought the fat comments were the least excusable. Good God, man, there are one helluva lot more Rosie lookalikes than there are Ivana/Marla/Melania lookalikes, even among your own set, and Rosie’s never exactly tried to hide the fact she’s overweight (she in fact is adamantly opposed to unnecessary extreme procedures and fad diets). He also claimed she made Danny Devito look like an alcoholic (I’ve no idea if Devito has a drinking problem but he was definitely drunk on their show) and misrepresented her career. The ultimate eyeroll for me is that he could so _easily_ have won this showdown and made Rosie look like the loudmouthed know-it-all she is with a couple of well place biting quips and then silence, which makes me wonder if he’s really the brains behind the Trump empire. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [December 24, 2006, 3:10am UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/22 "2006-12-24T03:10:34Z")
[QUOTE=Campion] Incidentally, I’d be interested to see your cite for the proposition that slander, libel and defamation in California are different beasts. [/QUOTE] AP Stylebook, pg. 343. “California is an example of a state that distinguishes substantially between libel and slander.” The book goes on at length with the state’s statutory definition of slander. “Defamation,” the book points out, includes both libel and slander. As I said, my current version is at the office. This is from an edition published several years ago. The law may have changed. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 24, 2006, 6:03am UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/23 "2006-12-24T06:03:49Z")
[QUOTE=kunilou] AP Stylebook, pg. 343. “California is an example of a state that distinguishes substantially between libel and slander.” The book goes on at length with the state’s statutory definition of slander. “Defamation,” the book points out, includes both libel and slander. As I said, my current version is at the office. This is from an edition published several years ago. The law may have changed. [/QUOTE] That libel is not slander, and slander is not libel, is not in question. They are two different types of defamation. What your prior post stated was that defamation was a different thing from either one. It was to this that **Campion** was refering. I wouldn’t quote an AP Style manual for information about legal systems, by the way. You might want to quote the law of the state, easily found, probably on line at Findlaw. 🙂 ---
**Author:** ![Mk\_VII](https://avatars.discourse-cdn.com/v4/letter/m/5f9b8f/32.png) [@Mk\_VII](https://boards.straightdope.com/u/Mk_VII)\ **Post date:** [December 24, 2006, 1:25pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/24 "2006-12-24T13:25:49Z")
Here, at any rate, libel includes sound recordings and and TV broadcasts which are capable of being recorded by the viewer in ‘permanent reproducible form’ ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 24, 2006, 1:47pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/25 "2006-12-24T13:47:14Z")
[QUOTE=Mk VII] Here, at any rate, libel includes sound recordings and and TV broadcasts which are capable of being recorded by the viewer in ‘permanent reproducible form’ [/QUOTE] Yes, I wanted to address this, because someone up above made some sort of comment about slander only being private statements, which is not correct. I think they are confusing the fact that slander is spoken defamation, whereas libel is “written” defamation. Since a recording is a “writing,” as it were, if you make a recording of your spoken declaration that defames someone, and then “publish” (a term of art in defamation law) that recording, you have committed libel in most states. So, to take as an example Rosie on her show. If during her monologue she utters a false statement of fact about Donald Trump, she has slandered him to the audience that is there, live. If this is recorded, and broadcast, she has libeled him to everyone who sees the broadcast. Needless to say, the libel will be considered the far more egregious act, the one really in need of redress legally. Now, here I will have to rely on memory, since I’m not going to bother looking it up, and it HAS been some 20 years since I had to know all this crap to pass California’s Bar Exam, but IIRC, you can get nominal damages from defamation cases, meaning you don’t have to prove actual damages to obtain an award, though the amount of the award may not be very large (sometimes, merely symbolic). Again, perhaps someone who recomembers this better than I do (like **Campion** or **Gfactor** can chime in and correct me. 🙂 ---
**Author:** ![Caridwen](https://avatars.discourse-cdn.com/v4/letter/c/c89c15/32.png) [@Caridwen](https://boards.straightdope.com/u/Caridwen)\ **Post date:** [December 24, 2006, 8:28pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/26 "2006-12-24T20:28:33Z")
[QUOTE=pseudotriton ruber ruber] Wouldn’t it substantially damage Trump’s ability to make business deals if people thought (incorrectly due to Rosie’s blathering) that he had a history of declaring personal bankrupcy at the drop of a hat? [/QUOTE] In the documentary \*Born Rich \* Ivanka Trump talked about her father’s bankrupcy. She said something about walking past a homeless man and her father saying at the time that he had less money than the homeless guy did. She then talked about how he built up his fortune again. On her blog I think Rosie said she got her information from Wikipedia. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [December 25, 2006, 12:39am UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/27 "2006-12-25T00:39:35Z")
[QUOTE=DSYoungEsq] Now, here I will have to rely on memory, since I’m not going to bother looking it up, and it HAS been some 20 years since I had to know all this crap to pass California’s Bar Exam, but IIRC, you can get nominal damages from defamation cases, meaning you don’t have to prove actual damages to obtain an award, though the amount of the award may not be very large (sometimes, merely symbolic). Again, perhaps someone who recomembers this better than I do (like **Campion** or **Gfactor** can chime in and correct me. 🙂 [/QUOTE] All this, I believe, is still going to be subject to the public figure doctrine, under which Trump, in order to get any damages, would have to prove actual malice – that Rosie knew that it was untrue and said it specifically in order to damage his reputation. It would be difficult, I think, because everything Rosie said, whether strictly accurate or not, is already information in the public domain. Furthermore, Trump would have to show that people’s believing that he has been bankrupt, that he has been married more than once, and that he has engaged in extramarital affairs would damage him specifically, and I think he would have a hard time doing that for a few reasons: (1) I believe he has admitted to doing as much previously, and (2) in this day and age it would be hard to show that information like this could actually harm someone like Trump. The biggest obstacle, of course, would still be that he would have to show that Rosie made a false statement of fact. Most of what she said is opinion and even if her statement about his bankruptcy is not strictly true, it’s probably not false enough to be a false statement of fact, if you get my drift. Basically, under the First Amendment, a statement by Rosie that amounts to “Trump is no one to be judging someone else’s morals” is protected speech. Similarly, Trump’s statements that Rosie is ugly, unpleasant, a “loser” (boy, does he love that word), hated by her boss, and is at risk of losing her mate to someone more attractive are all opinions and are not actionable. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 25, 2006, 1:51am UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/28 "2006-12-25T01:51:59Z")
[QUOTE=acsenray] All this, I believe, is still going to be subject to the public figure doctrine, under which Trump, in order to get any damages, would have to prove actual malice – that Rosie knew that it was untrue and said it specifically in order to damage his reputation. It would be difficult, I think, because everything Rosie said, whether strictly accurate or not, is already information in the public domain. Furthermore, Trump would have to show that people’s believing that he has been bankrupt, that he has been married more than once, and that he has engaged in extramarital affairs would damage him specifically, and I think he would have a hard time doing that for a few reasons: (1) I believe he has admitted to doing as much previously, and (2) in this day and age it would be hard to show that information like this could actually harm someone like Trump. The biggest obstacle, of course, would still be that he would have to show that Rosie made a false statement of fact. Most of what she said is opinion and even if her statement about his bankruptcy is not strictly true, it’s probably not false enough to be a false statement of fact, if you get my drift. Basically, under the First Amendment, a statement by Rosie that amounts to “Trump is no one to be judging someone else’s morals” is protected speech. Similarly, Trump’s statements that Rosie is ugly, unpleasant, a “loser” (boy, does he love that word), hated by her boss, and is at risk of losing her mate to someone more attractive are all opinions and are not actionable. [/QUOTE] Any statement of opinion is not defamatory by its very nature: opinions are not “true or false.” The First Amendment has nothing to do with that. I didn’t discuss the issue of added hurdles for public figures because it isn’t relevant to the point I was making. The First Amendment DOES have something to do with the concept of “malice” as a requirement in some defamation cases. But that has nothing to do with the difference between libel and slander. 🙂 ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [December 25, 2006, 1:39pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/29 "2006-12-25T13:39:32Z")
[QUOTE=DSYoungEsq] Any statement of opinion is not defamatory by its very nature: opinions are not “true or false.” The First Amendment has nothing to do with that. [/quote] It’s my impression that in some non-American defamation law regimes: (1) Truth is not necessarily a complete defense (2) Opinion can be defamatory The First Amendment has _something_ to do with the truth and opinion defenses. To impose liability for true statements and opinions (especially about public figures) is an abridgement of freedom of speech/press. Purely hypothetically speaking, if by some chance it was decided on a common law level that these were not complete defenses to a defamation claim, it could very well become a First Amendment question. > [@](#): > > I didn’t discuss the issue of added hurdles for public figures because it isn’t relevant to the point I was making. The reason I brought it up is that actual malice is going to be Trump’s real hurdle, I believe. It’s a lot more difficult to prove than actual damages. > [@](#): > > But that has nothing to do with the difference between libel and slander. 🙂 Of course. Did I suggest so? As I said before, it’s my impression that slander is a relatively rare claim under American legal regimes and liability for slander is uncommon these days. All (or almost all) the action is on the libel side. ---
**Author:** ![Mk\_VII](https://avatars.discourse-cdn.com/v4/letter/m/5f9b8f/32.png) [@Mk\_VII](https://boards.straightdope.com/u/Mk_VII)\ **Post date:** [December 25, 2006, 6:38pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/30 "2006-12-25T18:38:26Z")
Here, truth can be a defence - but you as defendant will have to prove it’s true, rather than leaving the plaintiff to prove that it isn’t. Opinions are not defamatory. We could go into the ‘Albert Reynolds’ defence which several newpapers here have run in recent years. In that case, the Law Lords ruled that newspapers that have made defamatory statements - even if they cannot subsequently prove the truth of them - should be protected from prosecution, if the information published is sufficiently important that the interest in publishing it outweighs concerns about safeguarding a person’s reputation. However that’s arguably getting away from the original question. ---
**Author:** ![According\_to\_Pliny](https://avatars.discourse-cdn.com/v4/letter/a/8e7dd6/32.png) [@According\_to\_Pliny](https://boards.straightdope.com/u/According_to_Pliny)\ **Post date:** [December 26, 2006, 2:35am UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/31 "2006-12-26T02:35:56Z")
He couldn’t win because most people think he was bankrupt, so even if he wasn’t his image couldn’t have suffered. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 26, 2006, 4:06am UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/32 "2006-12-26T04:06:13Z")
[QUOTE=According to Pliny] He couldn’t win because most people think he was bankrupt, so even if he wasn’t his image couldn’t have suffered. [/QUOTE] Absolutely irrelevant. ---
**Author:** ![Quiddity\_Glomfuster](https://avatars.discourse-cdn.com/v4/letter/q/c4cdca/32.png) [@Quiddity\_Glomfuster](https://boards.straightdope.com/u/Quiddity_Glomfuster)\ **Post date:** [December 26, 2006, 7:17am UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/33 "2006-12-26T07:17:03Z")
[QUOTE=DSYoungEsq] Absolutely irrelevant. [/QUOTE] Why? If people already thought he’d been bankrupt, then clearly what she said hasn’t changed their opinions of him. And I am positive he’s bragged about it. Problem is Google only goes to 1000 references and this case has swallowed them all up. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [December 26, 2006, 4:21pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/34 "2006-12-26T16:21:51Z")
[QUOTE=Quiddity Glomfuster] Why? If people already thought he’d been bankrupt, then clearly what she said hasn’t changed their opinions of him. And I am positive he’s bragged about it. Problem is Google only goes to 1000 references and this case has swallowed them all up. [/QUOTE] Because it would only be relevant to an issue of damages, and as I stated previously (and still believe to be true, though I could be wrong, as I mentioned before), defamation suits allow for presumptive damages. That means that you don’t have to prove **actual** damage; you get an award based on the conduct alone. So it doesn’t matter if the lie is commonly believed; by repeating it, you are further damaging the already sullied reputation of the person involved. Perpetuating the problem, so to speak. And **According to Pliny** asserted it would affect his chances to “win” (meaning, being successful in the suit), which, as I have shown, it would not. Thus, irrelevant. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 27, 2006, 8:05pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/35 "2006-12-27T20:05:32Z")
[QUOTE=DSYoungEsq] Because it would only be relevant to an issue of damages, and as I stated previously (and still believe to be true, though I could be wrong, as I mentioned before), defamation suits allow for presumptive damages. That means that you don’t have to prove **actual** damage; you get an award based on the conduct alone. So it doesn’t matter if the lie is commonly believed; by repeating it, you are further damaging the already sullied reputation of the person involved. Perpetuating the problem, so to speak. And **According to Pliny** asserted it would affect his chances to “win” (meaning, being successful in the suit), which, as I have shown, it would not. Thus, irrelevant. [/QUOTE] Ok. Here’s the deal: 1. Presumed damages. Still available in some jurisdictions in some cases, but not easy for Trump to get. Let’s start at the beginning: In most slander cases, at common law, the plaintiff had to show “special harm,” which is actual damage to reputation. [Defamation, Libel, and Slander Per Se](http://www.dancingwithlawyers.com/freeinfo/libel-slander-per-se.shtml) But there were some categories of defamation that were “per se,” bad enough to presume damages. As Justice White described the common law rule in _Gertz v. Welch_, [QUOTE=White’s dissent] In 1938, the Restatement of Torts reflected the historic rule that publication in written form of defamatory material - material tending “so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him” 1 - subjected the publisher to liability although no special harm to reputation was actually proved. 2 Restatement [418 U.S. 323, 372] of Torts 569 (1938). 3 Truth was a defense, and some libels were privileged; but, given a false circulation, general damage to reputation was presumed and damages could be awarded by the jury, along with any special damages such as pecuniary loss and emotional distress. At the very least, the rule allowed the recovery of nominal damages for any defamatory publication actionable per se and thus performed ``` "a vindicatory function by enabling the plaintiff publicly to brand the defamatory publication as false. The salutary social value of this rule is preventive in character since it often permits a defamed person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom." Id., 569, comment b, p. 166. ``` If the defamation was not libel but slander, it was actionable per se only if it imputed a criminal offense; a venereal or loathsome and communicable disease; improper conduct of a lawful business; or unchastity by a woman. Id., 570. To be actionable, all other types of slanderous statements required proof of special damage other than actual loss of reputation or emotional distress, that special damage almost always being in the form of material or pecuniary loss of some kind. Id., 575 and comment b, pp. 185-187. Damages for libel or slander per se included “harm caused thereby to the reputation of the person defamed or in the absence of proof of such harm, for the harm which normally results from such a defamation.” Id., 621. At the heart of the libel-and-slander-per-se [418 U.S. 323, 373] damage scheme lay the award of general damages for loss of reputation. They were granted without special proof because the judgment of history was that the content of the publication itself was so likely to cause injury and because “in many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed.” Id., 621, comment a, p. 314. 4 Proof of actual injury to reputation was itself insufficient proof of that special damage necessary to support liability for slander not actionable per se. But if special damage in the form of material or pecuniary loss were proved, general damages for injury to reputation could be had without further proof. “The plaintiff may recover not only for the special harm so caused, but also for general loss of reputation.” Id., 575, comment a, p. 185. 5 The right to recover for emotional distress depended upon the defendant’s otherwise being liable for either libel or slander. Id., 623. Punitive damages were recoverable upon proof of special facts amounting to express malice. Id., 908 and comment b, p. 555. [418 U.S. 323, 374] [/QUOTE] [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=418&invol=323](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=418&invol=323) \*Gertz \* restricted this practice: > [@](#): > > For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. So no more presumed damages unless the plaintiff can show actual malice. \*Dun & Bradstreet \* limited Gertz to cases in which the statement “touches public concern.” [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=472&invol=749](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=472&invol=749) Because Trump is a public figure, he’d have to prove actual malice no matter what. But \*Gertz \* & _Dun & Bradstreet_ have caused some uncertainty in the courts. _E.g_., [http://www.supremecourt.nm.org/supctforms/jury/VIEW/13-1010.html](http://www.supremecourt.nm.org/supctforms/jury/VIEW/13-1010.html) I could go on an on, but that’s the gist of it. It’s a mess, and you have to look at the cases in the jurisdiction where the case gets filed. And that could be a lot of places. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=465&invol=770](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=465&invol=770) Of course, it doesn’t follow that a jurisdiction will apply its own law to the case, but I think I’ve made my point: It’s tough to tell exactly what standards will get applied, other than the federal one imposing the actual malice requirement. 1. The didn’t change people’s opinions could have some relevance, after all. In Guccione v. Hustler, 800 F.2d 298; 1986 U.S. App. LEXIS 29667; 13 Media L. Rep. 1316 (2d Cir. 1986), the court faced a claim by Penthouse publisher Bob Guccione, who claimed he’d been defamed by Hustler. I quote extensively from the opinion for two reasons. First, because it’s the work of a federal employee, and hence, not subject to copyright. And Second, because I have an autistic child screeching in the next room: > [@](#): > > In the “Bits & Pieces” section of its November 1983 issue, Hustler printed a half-page article by Flynt that commented on Guccione’s practice of being photographed, fully clothed, with naked Penthouse models. The article, entitled “What a Ham!” and labeled “Editorial Opinion,” was accompanied by a photo from the September 1983 issue of Penthouse, depicting a clothed Guccione with his arm around an unclothed model sitting on his knee. The article included the following sentence: “Considering he is married and also has a live-in girlfriend, Kathy Keeton . . . we wonder if he would let either of them pose nude with a man” (ellipsis in original). Guccione contends primarily that the quoted language falsely accuses him of committing adultery in 1983, when the article appeared. He also suggests that it falsely implies that he was then living with his wife and girlfriend simultaneously. It is undisputed that Robert and Muriel Guccione married in 1956, separated in 1964, and divorced in 1979; Guccione has not remarried. It is also undisputed that Guccione has cohabited with Kathy Keeton since 1966. The jury was instructed: > [@](#): > > ``` > Put another way, if you determine that the libel in question should be read as accusing Guccione of committing adultery only in 1983, the fact that Guccione might have committed adultery at another time is not going to make the statement substantially true. However, if you determine that the libel should only be read as accusing Guccione more generally of being an adulterer, you can then consider the evidence of Guccione's prior actions in relation to this issue of substantial truth. > > ``` Hustler objected to the instruction and the appellate court said: > [@](#): > > This portion of the instruction permitted the jury to read the alleged libel as accusing Guccione of committing adultery “only” in 1983, in which event the jury was not to consider whether his past adultery made the statement substantially true. Though such a consequence would follow from such a reading of the statement, that reading is not within the range of reasonable interpretations requiring the jury’s resolution. The statement was not an allegation of a specific act, like robbing a bank, that might in some circumstances be fairly interpreted either to mean that the act was committed at a time immediately prior to the publication or to mean that commission occurred at some time considerably earlier. The statement about Guccione alleged ongoing relationships – marriage to his wife and cohabitation with his girlfriend. There is not the slightest indication from the statement, or from any evidence offered that might aid in interpreting the statement, that it may fairly be read to mean that the marriage and the cohabitation existed simultaneously only at a moment or brief interval just prior to the article’s publication. The statement can be read to mean only that the marriage and the cohabitation existed simultaneously throughout an undefined span of time that included the period immediately prior to publication. > > On this reading, the undisputed facts establish the defense of substantial truth as a matter of law. New York law recognizes that an alleged libel is not actionable if the published statement could have produced no worse an effect on the mind of a reader than the truth pertinent to the allegation. See Fleckenstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537 (1934). The published statement read, “Considering he is married and also has a live-in girlfriend, Kathy Keeton . . . we wonder if he would let either of them pose nude with a man.” Substituting the truth for the false statement yields the following: “Considering that from 1966 to 1979 he was married and also had a live-in girlfriend, Kathy Keeton . . . we wonder if he would let either of them pose nude with a man.” The only difference in effect between the two statements worked in Guccione’s favor; as printed, the statement merely points out the fact of his adultery, without calling attention to its duration for thirteen of the preceding seventeen years. > > This is not to suggest that every person guilty of even a single episode of marital infidelity has no recourse if, years after the fact, he is accused in print of currently committing adultery. However, the undisputed facts of this case – the extremely long duration of Guccione’s adulterous conduct, which he made no attempt to conceal from the general public, and the relatively short period of time since his divorce – make it fair to say that calling Guccione an “adulterer” in 1983 was substantially true. Of course, “former long-time adulterer” would have been more precise. But on the facts of this case, to require such a level of accuracy is unreasonable. The article labels Guccione an adulterer. The average reader would understand that term to include a man who unabashedly committed adultery for thirteen of the last seventeen years and whose adulterous behavior ended only because his wife ultimately divorced him. Where, as here, “the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done.” Cafferty v. Southern Tier Publishing Co., 226 N.Y. 87, 93, 123 N.E. 76 (1919). > > The undisputed facts also establish that Guccione’s libel complaint fails because Guccione was “libel-proof” with respect to the accusation of adultery printed in the Hustler article. We have recognized that a plaintiff’s reputation with respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject. See Cardillo v. Doubleday & Co., Inc., 518 F.2d 638, 639-40 (2d Cir. 1975). It has also been recognized that a plaintiff may have had his reputation so badly damaged by true statements in a particular publication that minor false accusations within the same publication cannot result in further meaningful injury. See Simmons Ford, Inc., v. Consumers Union, 516 F. Supp. 742 (S.D.N.Y. 1981) (Weinfeld, J.). The libel-proof plaintiff doctrine is to be applied with caution, see Buckley v. Littell, 539 F.2d 882, 889 (2d Cir. 1976), cert. denied, 429 U.S. 1062, 97 S. Ct. 785, 50 L. Ed. 2d 777 (1977), since few plaintiffs will have so bad a reputation that they are not entitled to obtain redress for defamatory statements, even if their damages cannot be quantified and they receive only nominal damages. But in those instances where an allegedly libelous statement cannot realistically cause impairment of reputation because the person’s reputation is already so low or because the true portions of a statement have such damaging effects, even nominal damages are not to be awarded. Instead, the claim should be dismissed so that the costs of defending against the claim of libel, which can themselves impair vigorous freedom of expression, will be avoided. See generally Note, The Libel-Proof Plaintiff Doctrine, 98 Harv. L. Rev. 1909 (1985). > > Guccione argues that the libel-proof plaintiff doctrine may not be applied to him with respect to the subject of adultery because he has not been convicted of the crime of adultery. Though criminal convictions were the principal basis for the low reputation of the libel-proof plaintiff in Cardillo, the doctrine is not limited to plaintiffs with criminal records. See Simmons Ford, Inc. v. Consumers Union, supra. > > In Wynberg v. National Enquirer, Inc., 564 F. Supp. 924, 928-29 (C.D. Cal. 1982), the Court recognized that a plaintiff may be rendered libel-proof by evidence apart from criminal convictions. In Wynberg, the National Enquirer published an article stating that the plaintiff had used his relationship with Elizabeth Taylor for financial gain. In finding Wynberg libel-proof, the District Court first noted the plaintiff’s string of convictions for crimes that damaged his reputation for his treatment of women in general. The Court then relied equally, however, on Wynberg’s “specific reputation for taking financial advantage of Elizabeth Taylor,” citing numerous articles, printed prior to the National Enquirer piece, that ascribed to Wynberg a profit motive in his relationship with Taylor. Id. No criminal convictions related to Wynberg’s dealings with Taylor. The non-criminal evidence was perhaps the more appropriate basis for the determination that Wynberg was libel-proof, since it showed that his reputation was already severely damaged with respect to the precise point of the alleged libel. > > In the present case, the District Court based its ruling that Guccione was not libel-proof on the absence of criminal convictions and the lack of publicity regarding Guccione’s adultery. 632 F. Supp. at 323-24. We have rejected the first basis and also conclude that undisputed evidence sufficiently established that Guccione’s reputation regarding adultery rendered him libel-proof on this subject. Guccione testified that from 1966 until 1979 his relatives, friends, and business associates knew that he was living with Keeton while still legally married. He acknowledged that he never hid either his marriage or his relationship with Keeton from anyone. Guccione on several occasions told reporters both that he was separated from his wife and that he was living with Kathy Keeton. > > Defendants offered magazine and newspaper articles as evidence of Guccione’s poor reputation on the subject of adultery. These articles, which describe both Guccione’s marital status and his contemporaneous relationship with Keeton, appeared in widely circulated publications such as Newsweek, New York magazine, and the Washington Post. With one exception, a 1978 article in Maclean’s, a Canadian magazine, the District Court excluded this evidence, apparently because it viewed the publications, printed in the early-to mid-1970’s, as being too remote in time to be relevant to the state of Guccione’s reputation in 1983. > > In our view, this evidence, the authenticity of which is undisputed, was improperly excluded. The articles were extremely probative of Guccione’s notoriety for adultery during the period when his adultery was most newsworthy – while it was occurring. The articles, in combination with Guccione’s testimony, show wide dissemination of the information that Guccione was living with Keeton while still married. The damage to Guccione’s reputation occurred a decade before Hustler published its November 1983 article and stemmed from truthful reporting of facts freely admitted by Guccione himself. Any subsequent reporting accusing Guccione of adultery prior to his 1979 divorce could not further injure his reputation on the subject. > > Nor is it tenable to maintain that Guccione, though libel-proof as to adultery from 1966 to 1979, somehow succeeded in restoring his reputation during the four years prior to the Hustler statement. As with the defense of substantial truth, the pertinent circumstances are the long duration of a widely known adulterous relationship combined with the relatively short period between its end and the article’s publication. Moreover, the evidence provided no adequate basis for concluding that those who knew of the adulterous relationship from 1966 to 1979 became aware that the divorce occurred in 1979, thereby ending the adultery. Guccione’s reputation for adultery could not have been further damaged by the publication of the alleged libel in 1983. 1. Libel vs. slander is an interesting distinction, but between restrictions on presumed damages, state courts curtailing per se categories, and general misuse of the terms by courts over the years, it really doesn’t have much left to it. \*E.g., \* [http://linuxmafia.com/pub/skeptic/libel-per-se-caselaw](http://linuxmafia.com/pub/skeptic/libel-per-se-caselaw) ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [December 27, 2006, 8:27pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/36 "2006-12-27T20:27:43Z")
I have noticed that many have remarked that Trump’s status as a public figure makes it tougher on him, as he has to prove damages or malice. I agree that Trump is a public figure. But what is the definition of a public figure? Being rich aint got nuthin to do with it. There are plenty of rich folk out there that would not be considered “public figures”… Does the court or judge ultimately decide if a specific person is well known enough to be a “public figure”? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [December 27, 2006, 8:39pm UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/37 "2006-12-27T20:39:01Z")
The public figure doctrine is a common law (judge-created) doctrine and is not codified in statute, so, yes, the court has to decide whether it applies in a particular case. Note that it doesn’t make a defamation claim impossible to win. Carol Burnett won a suit against the National Enquirer. ---
**Author:** ![Sampiro](https://avatars.discourse-cdn.com/v4/letter/s/2acd7d/32.png) [@Sampiro](https://boards.straightdope.com/u/Sampiro)\ **Post date:** [December 29, 2006, 7:02am UTC](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253/38 "2006-12-29T07:02:42Z")
[QUOTE=mlees] I have noticed that many have remarked that Trump’s status as a public figure makes it tougher on him, as he has to prove damages or malice. I agree that Trump is a public figure. But what is the definition of a public figure? [/QUOTE] That’s a very good question. I would argue that there are different degrees of public figure and also that what is and is not acceptable to “exploit” or speculate upon would be also malleable. I don’t know what the legal definition is, but I would suggest that it’s a person whose career, persona and private life are all highly publicized with their implicit consent. It was always okay to write about Trump’s business dealings, of course- they’re matters of public record. I would speculate in my totally amateur opinion that Trump became a public persona and thus it was acceptable to write about him as a PRIVATE person when, after becoming a bestselling author and well known business figure, he actively encouraged media exposure by inviting camera crews into his home and appearing with then wife Ivana and the kids on all manner of programs and became a media gadfly along with his family. When Ivana became a romance novelist then launched various products she became a public figure, then there was Marla. Marla went on interviews, first while dating Donald to say how wonderful he was and how adultery was okay because what she had with him was real, then again after she broke up with him [when she even appeared as herself on the sitcom _Designing Women_] always to talk about how “don’t know what I was thinking, he was a sleazebag I’m well rid of him”, then again when she went back to him to tell why he wasn’t really a sleaze after all. and finally after theor divorce and baby to tell whatever 12 people for some reason gave a damn why he became a sleaze again, all while Ivana was also holding press converences pertaining to everything from her prenup and why it should be invalidated to her feelings for Marla and the baby and all that crap. All of this exposure, much of it perfectly welcome by a man who LOVES publicity and doesn’t really mind admitting it, made his personal, professional and private lives quite okay to mention without invading privacy long before he voluntarily appeared on and promoted and boasted of one of the highest rated primetime network series and had a high profile celebrity rich wedding (though only Katie Couric took pics and video, against invitation and request, though Donald didn’t seem to mind). George Ross, otoh, one of Trump’s closest advisors and a regular on _The Apprentice_ (the old man who sits on the right hand of Trump), I would _not_ consider a public figure. The show reveals nothing of his private life other than he’s grumpy and important in Trump Industries and in one of the few interviews he’s given he even stated he was not only uncomfortable with being recognized from the show but that he had not even been compensated for his appearances on the show. (I think he has been since that aired as Trump was a bit embarassed for this to be known, though I seriously doubt George is hurting for money or living soleley on Social Security and scraps that Donald drops.) Then there are the harder issues: authors, for example. Dan Brown, author of _The DaVinci Code_, is probably the bestselling U.S. author of the past decade (not positive of that, but he’s certainly on the short lists) but I would _not_ consider him a public person as he does not invite any publicity that’s not directly related to his book. I know he’s married (or has been married) and I think he has kids but to my knowledge he hasn’t shared anything about his private life beyond the occasional bio-blip of “Dan Brown resides in East Old Mangled Duck Village, New Hampshire with his wife Neutrogena Bauschenlomb Brown, their seventeen daughters and a long-dead Bijon Frise named Fifi” type stuff). OTOH, JK Rowling is the bestselling novelist in the world and while there are aspects of her life she is very private about her life as a single welfare mom is a huge part of her persona. Certainly it’s okay, imo, to write about her in the “Rowling rents third floor of Buckingham Palace for her London flat: tells Queen 'TURN DOWN THOSE BLOODY JIM NABORS CDs OR I’M CALLING THE COPS!” or “I went to school with JK Rowling and even then she was talking about how one day she was going to write about a boy Satanist and turn kids everywhere into parent killing demons” type human interest stuff, but writing about her father’s financial problems (which some have done) or her daughter in boarding school (which some have done) is not okay as being a public figure is not hereditary. The grey area would be if, say, she had to have a hysterectomy or lumpectomy or something equally highly personal and private (which to the best of my knowledge she hasn’t and of course I certainly hope she doesn’t): while there’s no question as to whether it would be improper to sneak pics from her hospital room with a zoom lens (even if legal), would it be okay to report it in the press without her permission? For that matter if she checked into Betty Ford Clinic for a Wild Turkey and Zantac addiction or had her nose altered, would it be okay to report it if she didn’t first? I’ve no idea. Of course all this is media coverage in general. Certainly it would be okay for a person to say “Harry Potter’s the most overrated piece of crap and JK Rowling’s a bimbo looking no talent hack” as it’s clearly a matter of opinion. (Not mine: I’m a huge Potter/Rowling fan.) Saying “that bitch stood by and let her dad do without until he had to sell his mementos from her to pay his bill and yet she’s loaded to the gills… I hope she chokes on her money” is getting into the grey area: we do not know all the details of her relationship with her father or what the understanding was of the items he sold or why Rowling did not give him money [generally it’s believed she did not know about his financial problems because he’s proud, etc.] so it’s not just opinion but getting into speculation and misleading… Sorry, short answer is no answer. For long answer see above. This would be an interesting matter for GD. [Previous page](https://boards.straightdope.com/t/out-of-curiosity-could-donald-trump-win-a-suit-against-rosie-odonnell/385253.md?page=1)