Donald Trump

When It Comes to Unauthorized Pawing, Does Trump Have a Reputation to Damage?

Responding to the candidate's lawsuit threat, The New York Times says its story had no effect on a reputation he created for himself.

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Trump campaign video

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.

NEXT: Brickbat: Coming for Your Guns

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  1. Spot on

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  2. Wait, is saving the info until now, to derail his presidential run “malice”? Because that was their intent. Hell, they ran a column claiming they didn’t have to act like journalists anymore because of him.

    1. No. Actual malice in this context means either the paper knew its story was false or ran it “with reckless disregard of whether it was true or false.”

      1. Excellent, thanks!

      2. *slap!*

        Hey, ifh — How’s the Aussie Parliament declaring Trump a slug playing down there?

        1. *slap!*

          Barely. It was not the Federal Parliament, but only the upper house of the NSW Parliament, which is like a State Senate only duller. Being rude about Trump gives them something to do, I suppose, and stops its members from roaming the streets and bothering people in a desperate search for relevance. I am amazed it got any coverage in the US. Fun fact: the nickname of the NSW lower house is The Bearpit, for its general lack of civility. “Slug” would be pretty tame in the Bearpit.

          Quite unusually, both the Prime Minister and Leader of the Opposition have condemned Grabgate. The normal response is to keep out of it, on the basis that we have to work with whatever charlatan or cynic you elect. They must be pretty confident of a Clinton coronation.

          1. In other words, this is the equivalent of the New Jersey State Senate adopting a resolution declaring that Paul Keating had cooties.

            1. Maybe the California State Senate, but basically yes

    2. No it isn’t. They don’t have a legal responsibility to anyone in that regard.

  3. It’s fun to watch Trump and the NYT fight, and I hope the worst for both of them. But, reputation isn’t property, so libel isn’t aggression and libel laws are.

    1. So you pay no attention to the reputation of people and companies when you decide who to do business with and whether they are known for poor quality and/or ripping off their customers? Reputation is a market signal and libel can cause actual harm. A civil remedy for libel is not prima facia an aggression.

      1. I say we bring back stonings for libel.

      2. No person or company is owed my interaction or business. If I choose not to interact or do business with them, then they’re not being harmed, regardless of why I made that choice. So, no, libel cannot cause actual harm.

        1. If you choose not to interact with them because of a false statement which has damaged their reputation, yes they are harmed.

          It’s not a matter of owed busiess it’s a matter of effect.

          1. We don’t agree on the definition of harm. I’d expound, but I’m afraid we’d just end up talking past each other. Maybe another time.

            1. +1000 for civility in internet comments

    2. You can say reputation is not property – but it absolutely has a value. And reducing that value through lies and fraud is an aggression.

      1. Value is subjective. Property isn’t.

        1. I don’t think you’d be considered a competent accountant

          intangible assets are still assets. And goodwill demands a market premium. Brands have market value and can be bought and sold.

          1. I’m not talking about economics or accounting. I’m talking about rights.

            Of course there are intangible assets. And of course they have value. But they’re not property. And property is the ONLY thing that matters when we’re talking about aggression*.

            * Aggression in the context of ethical system based on property rights. If we’re talking about any other system, then I’m bored.

            1. And you’re absolutely right. Reputatiin is a PERCEPTION, not property. You can’t “own” what other people think of you.

            2. But they’re not property.

              Donald Trumps brand-name is certainly property. He can license it to products which then slap it on the label, and people pay him for the privilege.

              You seem to be making assertions that aren’t true, then insisting they’re special and different because its an ‘ethical system’. What we’re actually talking about is law; Trump can sue people for damages if he thinks they’ve maliciously tried to damage his brand. Just as Coca Cola could sue you if you tried claiming their products cause impotence sans any evidence.

    3. Goodwill is an intangible asset, but that’s beside the point. The point is the entertaining and instructive dogfight between two gangs of hateful mystical looters clubbing and stabbing each other for the spoils to be gleaned from the wreckage of the faith-based asset-forfeiture Crash and Depression. The Golden Rule is negative and “do not do unto others as you would not have them do unto you” is the version Ayn Rand doubtless learnt as a child.
      With this in mind, observe how the Democratic and Republican parties treat each other, That is how they will have dealt with everyone, especially with the initiation of force firmly in hand.

  4. Who cares!

    Is there absolutely nothing in the wikilinks email dump we can discuss? Donald being Donald is a dead horse and that proverbial horse carcass has been picked clean.

    1. Look, word has come down from on high – destroy Trump.

      The Kochs have spoken.

    2. Pick one. Personally, I enjoyed the fracking one. Her public persona is so awful that perhaps her private one isn’t entirely loathsome.

      1. So many to choose from. My fav is the secret service guy assigned to first lady “C”. (use the C any way you wish)

        There are books and at least one documentary that describe the awful behavior of this Clinton machine. Odd to me that little of this, dare I say, deplorable activity is treated the same as it would be to anyone else that didn’t have D or a C attached to their name.

        Greater good and all that nonsense I suppose.

        1. Let’s be generous and assume it’s for “cankles”. FOB. Is that person a friend of Bill? Buying access is clearly what they were doing and ask Abramoff if you need more than that to get sent to the clink.

          1. Hey, “Friend of Bill” could have been referring to AA! Why denigrate people trying to better turn their lives around?

        2. “deplorable activity is treated the same as it would be to anyone else that didn’t have D or a C attached to their name.”

          Bear in mind that Trump was at least a Democratic *donor* (I don’t know about party member) until recently, and in NYC the Republicans are the people who in other states would be the vaguely-saner wing of the Democrats – that is, progressives who don’t drool on themselves or read Everyday Feminism.

    3. Is there absolutely nothing in the wikilinks email dump we can discuss?

      I have no idea what you’re referring to. “Dump”? I see nothing on the front page of the NYT about any “dump”

      There is a good story about how horrible guns are, however. Ugh, guns

      1. “Most are male, white, older than 30, from rural areas and have an annual income above $25,000.”

        white hics with dicks – got it.

        1. an annual income above $25,000.”

          They’re talking about 60million people. That stat implies (without saying so) that they all cling to the lower end of the income band. Most of them could be ‘above average’ income and that would still be true. The nature of their poll suggests they did ask people their specific income range, but its telling that they chose to describe lower-band rather than simply average income for the total. Because Narratives.

        2. The funniest thing about that description is that, except for the rural part, it describes the statistically average American (white, male, middle income, middle age, suburban). I guess it makes sense for them to freak out that the average American likes something they detest, but it strikes me as odd to consider something like this newsworthy. It’s like if they did an article on trick-or-treating and bothered to include the description of the average trick-or-treater as being younger than 30 and with an average annual income less than $25K.

  5. if he can show that these particular charges are false

    IOW, prove his innocence?

    1. OMG LIKE R U EVEN SUGGESTING HIS AUDIO COMMENTS WERENT TOTALY A CONFESSION OF RAPE BECAUSE UGH LIKE THEY SO TOTTALLY WERE

    2. Yes, Trump must have absolute proof that he didn’t do any of the things he is accused of without any evidence. Clinton on the other hand is to be presumed innocent no matter the evidence at hand. And if you don’t like it you are just a whining Trumptardian who needs to get over it.

    3. No, since in a libel case Trump would be the accuser, not the defendant. The defendant is still considered innocent until proven guilty (in this case, proving that they knowingly or recklessly published false and damaging information), which is how it should be.

      1. The concept of “presumption of innocence” doesn’t really make much sense in civil cases, which involve “preponderance of the evidence” criteria.

        In particular, if the accuser can show that the statement was probably false (plus some other things), then the defendant is guilty unless the defendant can disprove the accuser’s evidence.

  6. 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.

    Since the media is intent on inflicting pain on Trump with unsupported allegations then who can blame him. It’s already being discovered that one of the accusers used words from an song to describe what Trump did. Another had past legal trouble with him. Reason has a hard time stating the obvious: this was politically motivated by the NYT.

    1. It’s already being discovered that one of the accusers used words from an song to describe what Trump did.

      Linky?

  7. Doesn’t accepting a major party nomination for President kind of inherently mean that all the gloves are off?

  8. Good article, but the Supreme Court case that came to mind here was Hustler Magazine v. Falwell, in which the televangelist, whose dynasty is endorsing the current prohibitionist Republican candidate, lost to his friend Larry Flynt. One side effect of the whole brouhaha is that Dilbert cartoonist Scott Adams today posted: “This is a good time to remind you that I endorse Gary Johnson because he only touches himself.”

  9. I don’t see why being a “sexual predator” (in Hillary’s sense) should be disqualifying for the presidency; after all, Bill Clinton was one too.

    More importantly, how many butts Donald Trump gropes doesn’t affect me, and the legal system can take care of that; what I do care about is policy. Contrary to what Michelle Obama was saying, policy is the only thing that matters in an election.

  10. RE: When It Comes to Unauthorized Pawing, Does Trump Have a Reputation to Damage?
    Responding to the candidate’s lawsuit threat, The New York Times says its story had no effect on a reputation he created for himself.

    Hey if Bill Clinton can get away with pawing (among other things), then Trump the Grump should too.
    Its the American way.

  11. Has it ever occurred to anyone to notice that EACH AND EVERY 4 YEARS, the Republican candidate is trashed with similar allegations? This woman who claims–30 years later– that she didn’t know who it was on the plane who groped her for half an hour now she knows was Donald Trump. Wait a second here–if I did that to my wife on the plane, I’d have heard about it immediately. I would expect that if a stranger did it, he’d need emergency dental work, and the flight attendant would have known about it IMMEDIATELY!!!
    This is just more Demonrat campaign BS.

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