The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Trump v. The Wall Street Journal
Trial of the Century! See the Billionaire Media Titans Wrestling in the Mud! Coming to your screens this Fall!
It is, I suppose, an illustration of just how diminished and even sordid our political life has become these days that L'Affaire Epstein is the hot political show of the summer. But there it is. We'll see if it has legs for an extended run into the new fall season.
Here's what we know: Media megastar and ex-"Apprentice" co-producer and host Donald Trump has sued media megamogul Rupert Murdoch and The Wall Street Journal for defamation in federal district court [SD FL]. [The Complaint is available here] The suit is based on a front-page WSJ story asserting that a "letter bearing Trump's name" appeared in a 2003 birthday album celebrating Jeffrey Epstein's 50th birthday. The story described the letter this way:
"The letter bearing Trump's name, which was reviewed by the Journal, is bawdy—like others in the album. It contains several lines of typewritten text framed by the outline of a naked woman, which appears to be hand-drawn with a heavy marker. A pair of small arcs denotes the woman's breasts, and the future president's signature is a squiggly "Donald" below her waist, mimicking pubic hair. The letter concludes: "Happy Birthday — and may every day be another wonderful secret."
Trump says that there is no such letter. The Complaint states:
"[Defendants] falsely claimed that [Trump] authored, drew, and signed a card to wish the late—and utterly disgraced—Jeffrey Epstein a happy fiftieth birthday. . . . [N]o authentic letter or drawing exists. Defendants concocted this story to malign President Trump's character and integrity and deceptively portray him in a false light. . . . [T]he supposed letter is a fake and the Defendants knew it when they chose to deliberately defame President Trump." [emph. added]
Needless to say, I haven't the faintest idea whether the letter does or does not exist. If it does, though, Trump would surely know that it does, and, knowing that, he'd be an absolute madman to file this suit. That makes me think there's no such letter. On the other hand, surely the editors at the WSJ, a newspaper not known for manufacturing fake news, knew that the article was a potential bombshell, and would have taken extra-special precautions to ensure that all facts stated therein were true. That makes me think there is such a letter.
My strong suspicion is that the Journal will be able to produce a salacious letter "bearing Trump's name" – it is inconceivable that the Journal would have proceeded if such a thing did not actually exist - and that Trump will deny authorship or any knowledge of it. His defamation claim will require him to show not only that the letter in the Journal's possession is a fake, but also that the WSJ's investigation of the letter's provenance was inadequate, amounting to a "reckless indifference" to whether or not it was a fake.
The history of high-profile defamation lawsuits is littered with the carcasses of plaintiffs who ended up deeply regretting their decision to sue, from, most famously, Oscar Wilde[1]to Teddy Roosevelt[2] and James Whistler[3] and Henry Ford[4] to Jerry Falwell[5] and Johnny Depp[6]. Not only do these lawsuits often bring unwanted and intense media scrutiny to the allegations that otherwise might have gone completely unnoticed,[7] but because truth is a defense to a defamation claim, the lawsuit exposes to public view whatever evidence the defendant might uncover relevant to the challenged claims, which can expose an enormous amount of the plaintiff's dirty underwear to public view.
Harry Litman over at the New Republic thinks Trump's name is going to be added to this list, and, personally, I hope he's correct (though Trump has defied these kinds of expectations many, many times in the past). One can certainly imagine any number of ways a trial could backfire – bringing to light more information about the letter, the reasons why the WSJ concluded it came from Trump, and, more generally, the close relationship between Trump and Epstein.[8]
Trump, of course, famously said that he could shoot someone on Fifth Avenue in New York and not lose any supporters, and so far there has been nothing to contradict that. But participating in a billionaire's underage girls sex ring – IF the evidence reveals such a participation – might well be the bridge too far for many of his supporters. One would certainly hope so, for the good of the Republic.
I cannot wait to see how this plays out. This is sure to be Must-See TV. My only fear is that the Journal is pressured into settling the claim. So bad for ratings!
[1] Wilde – far and away the most successful author in Europe and quite possibly the world at the time – sued the Marquess of Queensberry for having publicly called him a "posing Somdomite" [sic]. Because truth is a defense to a defamatory libel charge, Queensberry was allowed to introduce a large trove of evidence concerning Wilde's eccentric sexual proclivities, which ultimately led to Wilde's arrest, conviction, and imprisonment on charges of sodomy and gross indecency. It ruined both his career and his life; he died, impoverished and in exile, three years after his release from prison – but not before writing "De Profundis," his remarkable and moving confessional. [See here]
[2]In 1903, TR ordered his Attorney General to institute criminal proceedings against the New York World newspaper for "seditious libel against the government of the United States" for having suggested in several articles that corruption and bribery had tainted Roosevelt's actions in connection with the building of the Panama Canal. The courts – including, ultimately, the Supreme Court – dismissed the indictment on the grounds that there was no statutory authority for a criminal action of this kind. It was an embarrassing defeat for Roosevelt, and was widely viewed as an unprecedented and unwarranted attack on the freedom of the press - as one contemporary history of the affair (still in print here) put it: "The Attempt Of President Roosevelt By Executive Usurpation To Destroy The Freedom Of The Press In The United States."
[3] The well-known American painter James Whistler sued art critic John Ruskin for libel for having written, in reference to one of Whistler's paintings, "I never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public's face." He won – and was, humiliatingly, awarded jury damages of one farthing.
[4] In 1916 Ford warned employees that they would lose their jobs if they volunteered for National Guard duty in order to participate in a border war with Mexico. Robert McCormick wrote an editorial in the Chicago Tribune complaining of "flivver patriotism," and averred that the policy demonstrated that Ford was "an ignorant idealist [and] an anarchist enemy of the nation which protects his wealth." Ford sued, and testified for nine days at the trial, which revealed that he was something of an ignoramus. He won the case, and was awarded a judgment of six cents (after having spent over $100,000 in 1916 dollars to prosecute the suit).
[5] Rev. Jerry Falwell sued Hustler magazine for publishing an advertisement "parody" which, among other things, portrayed Falwell as having engaged in a drunken incestuous rendezvous with his mother in an outhouse. Falwell lost on both his libel claim and his intentional infliction of emotional distress claim after reaching the Supreme Court, which held that "the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject." The suit, of course, brought a great deal of public attention to the parody which would almost certainly have been ignored had Falwell let it die a natural death.
[6] Johnny Depp sued The Sun newspaper (U.K) for defamation after they called him a "wife-beater" in an article. Amber Heard, Depp's ex-wife, was a key witness in the case, and their tumultuous relationship became the subject of intense media scrutiny. The UK court found that Depp had indeed committed acts of violence against Heard, a finding that greatly injured Depp's reputation and career.
[7] This is a close relative of the well-known "Streisand Effect," a reference to Barbra Streisand's 2003 lawsuit against the photographer Kenneth Adelman. Adelman had taken an aerial photo of Streisand's house as part of a project on documenting coastal erosion. Streisand claimed that publication of the photo on Adelman's website was an invasion of her privacy. The photo, which had been downloaded fewer than 10 times prior to her filing, immediately went viral and was seen by millions of viewers who would surely otherwise have been unaware of its existence.
[8] On the other hand, maybe this is all a huge Murdoch-Trump set-up designed to enhance Trump's standing when the Journal backs down. Maybe that's what JD Vance was talking to the Murdochs about back in June . . .
