The Volokh Conspiracy
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The Trump v. ABC Defamation Decision That Led to the $15M Settlement
From the July 24 opinion by Chief Judge Cecilia Altonaga (S.D. Fla.) that led to ABC's $15M (plus $1M in attorney fees plus an editor's note) settlement filed today:
On March 10, 2024, Stephanopoulos interviewed United States Representative Nancy Mace; ABC and ABC News broadcast the interview as part of the show This Week with George Stephanopoulos. In the interview, Stephanopoulos asked Mace about her endorsement of Plaintiff despite the fact he was "found liable for rape" [in E. Jean Carroll's civil case against him]. He repeated the phrase ten times during the interview, at one point stating "[j]udges and two separate juries have found him liable for rape," and "[t]he Judge affirmed that it was, in fact, rape." A screenshot of a newspaper headline stating that "Judge clarifies: Yes, Trump was found to have raped E. Jean Carroll[,]" was shown near the end of the broadcast….
Trump sued, arguing that the jury had concluded he had not committed rape but had only committed sexual abuse; ABC argued that, in context, the jury in Carroll v. Trump must have concluded he committed digital penetration, which is a form of rape or in any event tantamount to rape. But Chief Judge Altonaga disagreed:
"Under the substantial truth doctrine, a statement does not have to be perfectly accurate if the 'gist' or the 'sting' of the statement is true." …
[In resolving this question], the Court is mindful of the specific setting in which the statements were made. Here, Stephanopoulos was not describing Plaintiff's actions or Carroll's testimony against him; he was describing the jury's verdict.
This distinguishes several of the cases Defendants cite. In those cases, courts concluded it is substantially true for publications to describe forced sexual contact as rape when reporting on the events themselves. See, e.g., Moore v. Lowe (N.D. Ala. 2022) (concluding that it was substantially true to report that the plaintiff was accused of attempted rape, even if the statement would lead readers to believe he was accused of "forced vaginal sex rather than forced oral sex"); Nanji v. Nat'l Geographic Soc. (D. Md. 2005) (concluding it was not inaccurate to "use [] the term 'rape' as shorthand for sexual misconduct" when recounting "the abundance of sexual misconduct evidence in the public records").
More to the point, Defendants also cite cases finding substantial truth can arise when describing charges of forced sexual contact as charges for rape. Yet, these cases all involved underlying law that seemingly did not distinguish between rape and other forced sex crimes. See, e.g., Simonson v. United Press Int'l, Inc. (7th Cir. 1981) (noting "that 'rape' as defined by common usage is incorporated into second-degree sexual assault under Wisconsin law"); Hovey v. Iowa State Daily Pub. Bd., Inc. (Iowa 1985) (citing Simonson and noting that "[t]he definition of the crime of rape provided by the criminal law of Iowa was subsumed into the crime of sexual abuse with the adoption of the new Iowa Criminal Code"); Moore (noting, without addressing, the defendant's argument that forced oral sex constituted rape under Alabama law).
Here, of course, New York has opted to separate out a crime of rape; and Stephanopoulos's statements dealt not with the public's usage of that term, but the jury's consideration of it during a formal legal proceeding. Thus, while Defendants' cited cases are compelling, they are not directly responsive to the issue of whether it is substantially true to say a jury (or juries) found Plaintiff liable for rape by a jury despite the jury's verdict expressly finding he was not liable for rape under New York Penal Law.
To the contrary, one of Defendants' cited cases suggests Florida courts do not consider legal definitions to be mere formalities in this context. See Clark (determining that use of the term "rape" to describe an arrest for sexual battery "in the absence of formal legal charges is [ ] not defamatory"). The Court thus cannot definitively say it was substantially true to report on the (single) jury's verdict in Carroll II—which did not find Plaintiff liable for rape as that term is defined under New York law—as finding Plaintiff liable for rape.
Certainly, Defendants' theory has one credible supporter: Judge Kaplan, who repeatedly determined that the jury's verdict—regardless of its finding that no rape as defined by New York's Penal Law had occurred—amounted to a finding of liability for rape as rape is commonly understood. As explained, however, Judge Kaplan's findings do not have preclusive effect here. The Court is thus only persuaded that substantial truth would arise if the jury's verdict of "No" was presented in combination with Judge Kaplan's additional findings. The Court considers that aspect of Defendants' arguments now, considering the allegedly defamatory segment in its entirety and in context, from the perspective of a reasonable viewer.
Under that standard, a reasonable jury could interpret Stephanopoulos's statements as defamatory. Stephanopoulos's exchange with Mace lasted about ten minutes, during which Stephanopoulos stated ten times that a jury—or juries—had found Plaintiff liable for rape. In fact, of course, the Carroll II jury did not find Plaintiff liable for rape under New York Penal Law; it was Judge Kaplan who determined that the jury's verdict amounted to liability for rape. Yet, none of these particularities make it into the segment such that a reasonable viewer would have indisputably understood what Defendants now brief in detail.
Instead, at one point, Stephanopoulos asked to display a screenshot of a newspaper article about Judge Kaplan's findings and stated that "the Judge affirmed that it was, in fact, rape." This ostensible "clarification" occurred late in the segment and did not include any further explanation; viewers were simply treated to a ten-second glimpse of a headline and partially blurred text, with no mention of Judge Kaplan by name or any description of why his description of the verdict differed from the jury's actual verdict as recounted by Mace. On this record, the Court finds that the segment is, at least, "confusing or ambiguous" and susceptible to defamatory interpretation.
Once again, the Court does not find that a reasonable jury must—or even is likely to—conclude Stephanopoulos's statements were defamatory. A jury may, upon viewing the segment, find there was sufficient context. A jury may also conclude Plaintiff fails to establish other elements of his claim. See Readon v. WPLG, LLC (Fla. 3d DCA 2021) ("The First Amendment safeguards publishers from defamation suits brought by public figures unless the publisher acts with actual malice." (citations omitted)). But a reasonable jury could conclude Plaintiff was defamed and, as a result, dismissal is inappropriate.
For much the same reason, Chief Judge Altonaga also rejected defendants' fair report privilege arguments, which applies only to substantially accurate reports of court proceedings.
True, the fair report privilege absolves the media of the burden to be "technically precise" in their descriptions of legal proceedings. But the privilege does not protect media where the omission of important context renders a report misleading. See Dershowitz v. Cable News Network, Inc. (S.D. Fla. 2021) (rejecting the application of the fair report privilege, where playing a partial video clip, as opposed to the full video, "presented an official proceeding in a misleading manner"). Here, a reasonable viewer—especially one who was aware that Plaintiff had been charged with rape under New York Penal Law—could have been misled by Stephanopoulos's statements, which did not include the jury's original findings and only fleetingly referenced the interpretation Judge Kaplan later offered.
There's a lot more in the opinion, including a juicy (is there any other kind?) collateral estoppel issue. The settlement also obligates ABC to add an editor's note saying that "ABC News and George Stephanopoulos regret" the statements about Trump. Alejandro Brito (Brito LLC) represents Trump.
