Defamation Law: President Trump, Sarah Palin and others

Today's chapter of “Law School For You” explores a legal topic that's very much in the news in 2017: U.S. law as it pertains to libel, slander and defamation.

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WASHINGTON, July 2, 2017 – Libel is an untrue published statement. Slander is an untrue spoken statement. Defamation is the action of damaging the good reputation of someone, either by libel or slander.

A statement will be considered defamatory if it tends to harm the reputation of another individual so as to lower him or her in the estimation of the community or to deter others from associating with him or her.

Example: Actress Sharon Stone sued plastic surgeon Renato Calabria, who told two U.S. magazines that Stone had undergone a facelift. She claimed the accusations were false and that Calabria defamed her, making it difficult for her to find work. She sued him and won.

Other examples of defamatory statements are almost limitless. They often fall into one of several categories, such as the following.


Suggesting or stating that someone:

  • was involved in a serious crime involving an immoral crime (lying, cheating, stealing) or a felony;
  • has an infectious disease;
  • is incompetent in their job, trade or profession;
  • is a prostitute.

The defamatory statement must be false, and not an opinion. “I think Joe is a jerk” is not defamatory. “I think Joe stole money” is not an opinion and will most often be considered defamatory. Truth is always a defense. If Joe did steal money, this statement will not be defamatory.

Defamation laws in the United States pre-date the American Revolution. In 1734 John Zenger, a New York journalist, was sued by the governor of New York, who accused Zenger of libel for statements critical of the governor. The governor ordered Zenger arrested. The grand jury refused to indict, so the governor had him charged with libel. The trial ended favorably for Zenger, and the concept of truth was established as an absolute defense. Seems the governor was not so honest.

Most defendants in defamation cases are newspapers or publishers. They account for twice as many lawsuits as television stations.

Most plaintiffs are corporations, businesspeople, entertainers and other public figures, and people involved in criminal cases.

Compared to private citizens, celebrities and public figures have a more difficult time prevailing in a defamation lawsuit. A private person only needs to prove that the defamer acted negligently, while a public figure has to prove that the defamer acted intentionally or recklessly.

Because of this more stringent standard, most celebrities do not file defamation lawsuits, and those who do often lose.

This stricter standard was established in the 1964 landmark Supreme Court case New York Times v. Sullivan. The court in that case radically changed the nature of libel laws in the United States by establishing that public figures could win a libel case only when they could prove the media knew either that the information was wholly or patently false or that it was published “with reckless disregard of whether it was false or not.”

Actress Cameron Diaz is one celebrity who did sue. The British Sun newspaper hinted she was having an affair with Shane Nickerson by publishing a poor-image photo of the two. Both Diaz and Nickerson were in relationships with others at that time, and the article accompanying the photo damaged both their relationships. Diaz sued and won. The amount involved was never published.

In 1988, pastor and televangelist Jerry Falwell sued Hustler Magazine over a parody ad claiming Falwell had engaged in an incestuous act with his mother in an outhouse. Although that article was clearly false, the Supreme Court ruled that Falwell could not win damages for emotional distress because the statement was so obviously ridiculous that it was clearly not true and because it was an allegation believed by nobody. A lower court jury ruled against Falwell’s libel claim but awarded him damages for emotional distress.

Professional soccer star David Beckham sued a magazine that published an article claiming he had hired a prostitute. Because Beckham could not prove the magazine acted maliciously, he lost.

Just last week, Sarah Palin, former candidate for Vice President, filed a lawsuit against The New York Times, alleging they published a statement about her in an editorial that they “knew to be false.”

Unlike Beckham, Palin will probably win, because first, the editorial statements were false; and second, because she will be able to prove the paper acted maliciously. The proof of that is that The Times had previously published other stories demonstrating that their own editorial was false. What will The Times’ defense be? “We don’t read our own newspaper.”

The Times linked Palin with language that it was “clear” and “direct” that Palin’s political action committee (PAC) incited violence, referring to the January 2011 mass shooting in Arizona that severely wounded U.S. Representative Gabby Giffords. The Times said Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats in harm’s way. The Times later issued a correction, saying there was no established link.

Filing a defamation lawsuit, like most civil lawsuits, is an attempt to obtain compensation for monetary damages.

Running as a candidate for President, Donald Trump also threatened to sue The New York Times, which reported complaints about two women who said Mr. Trump had touched them inappropriately. Mr. Trump’s lawyers called the article libelous and threatened to sue.

A lawyer for The Times responded that Mr. Trump’s reputation was too tarnished to allow for a successful libel suit:

“The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump’s reputation in this arena could not have been harmed in light of, for instance, Mr. Trump’s own statements about groping women… nothing in our article has had the slightest effect on (his) reputation.”

The endless media challenges and objections to candidate and now-President Trump have resulted in statements that Mr. Trump wants to change libel laws. Last month, White House Chief of Staff Reince Priebus said that change in the nation’s libel laws “are being looked at” by the Trump administration.

But legal experts have indicated that change would be nearly impossible.

President Trump does not like that in order for him to sue a newspaper or other media source, he would have to prove that there was actual malice or reckless disregard for the truth.

“They write false stories, you can’t really sue because the libel laws are essentially non-existent,” Trump said at an event in Arkansas in February 2016. “We’re going to open up the libel laws so when they write falsely we can sue the media and we can get these stories corrected and get damages.”

Libel laws are generally understood today, but there are variances between states, meaning state courts and state legislatures have defined their own libel laws. In order for a universal change in these laws to occur, there would need to be a constitutional amendment or a reversal by the Supreme Court of its 1964 Sullivan ruling. Neither of those legal changes is likely to occur.

Amy Adler, a law professor at the NYU School of Law, said such a change would need to come as a result of growing public dissent.

The Times published challenges every single day for the first 40 days of President Trump’s time in office, citing lies the paper claims he told. Can any politician always tell the truth?

It seems not much has changed since Mr. Zenger’s case in 1734. Politicians were not so honest even back then. I cannot be sued because I have not named anyone in particular.

 

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.

Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.

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