As published in Minnesota Lawyer.
Now that Donald Trump has been elected president, it remains to be seen if he will fulfill his threat to sue 11 women who accused him of sexual improprieties and the New York Times, which initially broke the story in the last month of the campaign.
If Trump follows through with defamation litigation, the president-elect will face some towering obstacles. In fact, some of those impediments stem from a case that involved the New York Times. Meanwhile, he has to deal with other civil litigation. The class-action fraud case against his Trump University is scheduled to begin right after Thanksgiving in federal court in New York, one of a trio of similar cases around the country.
Ironically, his inability to halt that litigation may be attributable to Bill Clinton, no less. See Clinton v. Jones, 520 U.S. 681 (1997) (President not entitled to immunity from civil tort lawsuit for pre-presidential conduct).
In 1964, the U.S. Supreme Court revolutionized the law of defamation, composed of libel for written or tangible words or expressions, such as those published in the Times, and slander for oral remarks like those of the women accusers. Supplanting a jumble of state defamation laws, the high court in New York Times v. Sullivan, 376 U.S. 254 (1964), replacing a jumble of state defamation laws, unanimously held that public officials cannot sue for defamation under the freedom of expression provision of the First Amendment unless they allege and prove that the communications about them were made with “actual malice,” which the justices defined as knowing falsity or reckless disregard for the truth. The principle subsequently was extended to well known personalities — and Trump is a quintessential one of them — and later to issues of public concern. Curtis Publishing Co. v. Butts; Associated Press v. Walker, 388 U.S. 130 (1967) (public figures); Rosenbloom v. Metro Media, Inc., 403 U.S. 29 (1971); (matters of “public or general interest.”)
The Times case arose out of one of the signature issues of its day, the civil rights movement. The suit was brought over an advocacy advertisement published in the Times by supporters of Martin Luther King who had been jailed in Birmingham, Alabama, while attending a civil rights protest there. The advertisement contained minor factual errors about the head local law enforcement authority, who sued for defamation under Alabama state law. Based on the inaccuracies, the jury awarded $500,000 to the claimant, which was upheld by the state supreme court.
The high court felt otherwise, prodded in part, perhaps by concerns that this lawsuit and others like it that were prevalent in the South at the time could have a debilitating effect on the burgeoning civil rights movement. But the Times doctrine had a life of its own and, over the last five decades, has become a vehicle to prevent, or minimize, libel litigation by public figures and public officials.
While truth, or at least substantial truth, has been a legal defense to defamation in this country for some 250 years, the court in Times recognized that requiring publications to avoid any inaccuracies or falsehoods would impose too high a price on First Amendment freedoms. It reasoned that freedom of expression requires some “breathing space” short of absolute accuracy and that allowing defamation lawsuits on matters of public significance could have a “chilling effect” on reporters and cause the media or others to engage in “self censorship” to avoid prospective litigation, deterring the desirable “uninhibited, robust, and wide-open” debate on issues of public importance. As the court later put it in Times progeny litigation, “[T]he First Amendment requires that we protect some falsehood in order to protect speech that matters.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974).
Minnesota’s first foray into the Times’ thicket came three years later in Rose v. Koch, 154 N.W.2d 409 (1967), a defamation lawsuit brought by Arnold Rose, a former one-term Minnesota legislator. A University professor and well known author and civil rights advocate, he was described by the Minnesota Supreme Court as a person of “prominence and public importance.” Rose filed the action two months before the New York Times ruling against the publisher of a right-wing Christian religious tract, who accused him of collaborating with “Communists” and their sympathizers.
A Hennepin County jury ruled in his favor, granting him general and punitive damages in the amount of $20,000, deemed a “total vindication” by the state supreme court upon the publisher’s appeal.
While lavishing praise on the claimant, the court nevertheless reversed the verdict, holding that it was “controlled by recent decisions of the United States Supreme Court imposing Constitutional limitations upon the state law of libel.” Applying New York Times and progeny, it held that the trial judge gave two defective instructions to the jury: 1) That the New York Times privilege ended after the plaintiff was no longer a member of the legislature, which overlooked the extension of New York Times beyond public officials to public figures; and 2) of more significance, the trial judge allowed the jury to consider ill will, the extreme language, extent of the publication and other factors in determining liability, which expanded the narrow consideration of whether the publication was made with the requisite “actual malice” of knowing falsity or reckless disregard for the truth under the Times standard. The case was, therefore, remanded but never re-tried as Rose died two years later.
Since the Rose case arose, Minnesota has faithfully followed the New York Times’ doctrine, occasionally deviating from mainstream law on several unresolved matters. For instance, it has held that public school teachers are “public officials” for purposes and subject to the New York Times’ doctrine, Elmstrom v. Ind. Sch. Dist. #270, 533 N.W.2d 51, 53 (Minn. App. 1995), a position that is at odds with the law in some other jurisdictions.
Surprisingly, none of the four major defamation decisions this year by the federal and state appellate courts in Minnesota turned on the Times doctrine or related constitutional issues. In Ventura v. Kyle, 825 F.3d 876 (8th Cir. 2016) cert. pending, a $1.8 million verdict for the former Minnesota governor was reversed, due to insurance references by his counsel in the trial. In Pfeil v. St. Matthews Evangelical Lutheran Church, 877 N.W.2d 528 (Minn. 2016) cert. pending, involved a dismissal of a defamation suit against a Worthington church for disparaging remarks made about the reasons for the expulsion of a couple from the congregation on grounds of the “ecclesiastical” doctrine. In Harlow v. State Dept. of Health, 883 N.W.2d 561 (Minn. 2016), a deputy commissioner of a state department was immune from defamation for comments about why an employee was fired. In Range Development Co. of Chisholm v. Star Tribune, 2016 Minn. App. LEXIS 69 (Sept. 12, 2016), held that journalists need not disclose confidential source. All of these cases were decided without a ripple in the flow of New York Times law.
As a threshold matter, to prevail, Trump must prove the accusations are false. He may do so by denying that the untoward incidents occurred, as he already has done extra-judicially. While the dispute seems to be a “they said/he said” controversy, the media or women defendants could point to contemporaneous accounts reportedly made by them to others about those incidents to substantiate their veracity. Trump, on the other hand, would undoubtedly highlight the length of time that has passed since the incidents allegedly occurred, some dating back more than three decades, along with the curious timing of the revelations on the eve of the election.
If Trump succeeds in establishing falsity, the focus then shifts to the “actual malice” standard established by the Times case. Trump must show that the reporting was done knowing that they were not true or at a minimum, that the press entertained serious doubts about them.
If a fact-finder determines falsity, satisfying the Times standard should not be too hard as to the women; they presumably knew that the incidents they allege did not occur. The Times, however, has somewhat of a shield particularly if it tried to vet the articles before they were published. While even insufficient or non-existent investigation can harm a defendant in a defamation case, lackadaisical or minimal investigation is not necessarily fatal unless Trump can show that the publication was aware of the falsity or recklessly did not inquire properly. Connelly v. Northwest Publications, Inc., 448 NW 2nd 901, 904 (Minn. App. 1989).
Even if the incoming president surmounts these hurdles, he still faces the dilemma of proving damages. He could show that there was general harm to his reputation, although given the large amount of data that has flowed during this campaign about Trump’s behavioral practice towards women, including his own so-called “locker room” banter in the “Access Hollywood” video, it may be difficult to convince a jury that his reputation was harmed by the article. Trying to show some kind of economic loss due to the publication would require him to show that he has been financially harmed, necessitating him to produce his tax returns.
But obtaining damages would not be the presumed purpose for Trump’s litigation. It would seem to be more of a “political” statement by him and a means of vindicating his badly-tarnished reputation.
If these hurdles prove too difficult to overcome, the president-elect might consider activating another message earlier in his successful campaign, his desire to change the law of defamation to facilitate suits by public figures and officials like him.
That would require, at a minimum, congressional action, along with new jurisprudence from the Supreme Court. Observers believe that is highly unlikely; many of the same savants deemed Trump’s run for the presidency implausible.
So, any lawsuit by Trump may falter in a court of law, regardless of how it is perceived in the court of public opinion. But, in this unconventional campaign that Trump has waged, anything is possible or, as that legal sage, the late Yogi Berra once said: “It is not over until it’s over.”
Who is a “public” official/figure under New York Times in Minnesota
- Elementary and secondary public school teachers;
- Law enforcement authority;
- Some repetitive litigants;
- Business corporations and other organizations.