Exactly why Trump's libel lawsuit would leave him a 'major loser'
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Earlier this week, Republican presidential nominee Donald TrumpDonald John TrumpRussian sanctions will boomerang States, cities rethink tax incentives after Amazon HQ2 backlash A Presidents Day perspective on the nature of a free press MORE and his surrogates insisted that his brags to reporter Billy Bush about sexually assaulting women, caught on a hot mic, were “locker room talk.” Empty boasts. Nothing more.

When asked whether he had “ever done those things” by debate co-moderator Anderson Cooper last Sunday night, Trump replied, “No, I have not.”

The series of events that ensued have presented Americans with a tantalizing legal question: Once Donald Trump brags that his celebrity status entitles him to grab women’s genitals, can he be defamed by a news organization reporting allegations against him of sexual assault?

Almost immediately after Trump denied acting on his words, women have come forward to contradict him. Two women contradicted Trump’s disavowal in an article published by the New York Times earlier this week.  

Jessica Leeds recounted an incident in a first-class airplane cabin over thirty years ago, when Trump allegedly “grabbed her breasts and tried to put his hand up her skirt.” The Times quoted Leeds calling the encounter “an assault.”

Another woman, Rachel Crooks, told the Times that Trump allegedly “kissed (her) directly on the mouth,” despite having met for the first time moments before.

The Times was not alone in reporting accounts from women disproving Trump’s claim that his boasts of sexual assault were all talk. The Palm Beach Post reported that another woman claimed Trump assaulted her at his Mar-a-Lago club over a decade ago. Then People Magazine writer Natasha Stoynoff published a first-person account of how in December 2005, also at Mar-a-Lago, Trump allegedly pushed her “against the wall and force(d) his tongue down (her) throat.” Just yesterday, an eleventh woman accusing Trump of sexual improprieties — Summer Zervos — alleged that he sexually assaulted her in a hotel room.

The reaction from the Trump campaign has been swift and ferocious. Trump himself called his accusers “horrible people” who “fabricated” their accusations and were part of a “conspiracy” of “liars” orchestrated by “the Clinton machine.” He went as far as to suggest that one accuser’s appearance undermined her credibility: “Take a look, you take a look … I don’t think so.”

Trump also threatened legal action against the Times. In a letter to the Times’s executive editor, Trump’s attorney demanded “a full and immediate retraction and apology” of the article, as “defamatory … libel per se.” The Times’s assistant general counsel, David McCraw, responded masterfully, writing that the newspaper published, in a legally permissible manner, “newsworthy information about a subject of deep public concern.”

McCraw explained that the newspaper’s article had not “had the slightest effect” on a reputation that Trump himself destroyed. He wrote that the Times “welcome(d) the opportunity to have a court set him straight.”

The Times is right. Trump does not have a case.

The tort of “libel per se” is committed where a published communication is so obviously harmful to the subject’s reputation — as with the accusation of criminal sexual misconduct — that damages are presumed and need not be specifically substantiated by the plaintiff. Trump’s problem with such an argument, however, is that he is the quintessential “public figure.”

Public figures include politicians, elected officials, and other widely known personalities engaged in public affairs or otherwise in the public eye. Trump not only fits this description, but has repeatedly boasted about his celebrity status.

In its unanimous 1964 New York Times v. Sullivan decision, the Supreme Court reaffirmed that public figures bringing defamation suits must prove that the defendant acted with “actual malice,” meaning “with knowledge that (the claim) was false or with reckless disregard of whether it was false or not.” A newspaper like the Times, therefore, has immunity from legal liability for publishing claims against a public figure that later are proved false, so long as the newspaper had no actual knowledge of the claim’s falsity and did not act with “reckless disregard” for what, in fact, was true.

In the Trump matter, the Times published accusations made by named sources. Their accounts are consistent with reports in other publications of other women’s accusations against Trump. Most importantly, the women’s stories are consistent with Trump’s own description of how he assaults women: “grab them by the p---y.” “(W)hen you’re a star, they let you do it. ... You can do anything,” he said.

Trump himself has handed the Times the strongest possible evidence for the newspaper’s airtight defense.

In his own voice and words he has revealed not only that the newspaper’s publication of his accusers’ accounts lack actual malice or falsity, but that they very likely were truthful. He has set the table for his own massive defeat. If a defamation case went forward, cross-examination under oath and full discovery would undoubtedly yield even more damning evidence.

The Times was fulfilling its journalistic duty in reporting these accounts. That the Republican nominee for president has boasted about sexually assaulting women, and that numerous women have come forward with detailed and credible claims showing that his boasts were not just locker room brags, not only is newsworthy but of immediate and significant national interest.

In his campaign against the Times, Trump will lose. In his campaign against Hillary ClintonHillary Diane Rodham ClintonThe Democratic demolition derby Juan Williams: Don't count Biden out Candidates in Obama's orbit fail to capitalize on personal ties MORE, whether Trump will win or lose will be up to the voters in our republic, informed by a free press protected by a First Amendment that empowers all of us — journalists and lay citizens alike — to hold public figures like Donald Trump to account.

Varona is professor of law and academic dean at American University Washington College of Law, where he teaches and writes in media law, among other subjects. He has practiced communications law at Skadden Arps and Mintz Levin, as well as at the Federal Communications Commission.

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