Threatening to sue The New York Times for defamation over its story about two women who say Donald Trump kissed or groped them without their consent, the Republican nominee's lawyer, Marc Kasowitz, claimed the report "constitutes libel per se," meaning the allegations are so inherently odious that they can be assumed to damage Trump's reputation. Responding to the lawsuit threat yesterday, a lawyer for the newspaper, David McCraw, said that when it comes to unauthorized pawing of women, Trump has no reputation to damage:
The essence of a libel claim, of course, is the protection of one's reputation. 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. He acquiesced to a radio host's request to discuss Mr. Trump's own daughter as a "piece of ass." Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump's unwanted advances. 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 funny (or sad) because it's true! But I'm not sure it matters as far as libel per se goes. Regardless of what Trump has said or what other women have alleged, if he can show that these particular charges are false (a tall order) and that The New York Times reported them with reckless disregard as to their accuracy (an even taller order), he should not also have to demonstrate that the charges injured him. Accusations of criminal conduct (which would include sexual assault) are presumed to be damaging. So are allegations that someone is professionally incompetent, that he has "a loathsome disease," or that she (but not he!) is unchaste or unfaithful.
As applied to Trump, a claim that he is a terrible businessman or that he has syphilis would, if provably false, be libel per se. But a false claim that he committed adultery would not be, meaning he would have to provide additional evidence that the charge hurt his reputation. In that case, the fact that Trump has bragged about committing adultery presumably would be relevant.
Since Trump is indisputably a public figure, the main obstacle to his winning a defamation suit is not the question of damages but the "actual malice" standard that applies to cases involving such plaintiffs under New York Times v. Sullivan. To prevail, Trump would have to show the Times either knew its story was false or ran it "with reckless disregard of whether it was true or false." The Times followed responsible reporting practices by seeking to confirm whatever details it could, interviewing sources with whom Trump's two accusers had shared their stories, and giving the candidate an opportunity to respond. In any case, as Gregg Leslie, an attorney with the Reporters Committee for Freedom of the Press, notes in an interview with the Poynter Institute, "doing 'insufficient investigation' is not enough" to be guilty of reckless disregard, which goes beyond mere error or carelessness.
The "actual malice" standard, which the Supreme Court has said is required by the First Amendment, is a steep obstacle for plaintiffs like Trump, which is why he wants to "open up our libel laws" (something he would have no power to do as president even if it were constitutional). But as Eric Boehm suggested yesterday, the real point of filing a lawsuit like the one Trump is threatening would not be to recover damages but to inflict pain on his enemies, discourage more accusers from coming forward, and deter negative coverage by media outlets with fewer resources than The New York Times.