There’s a legal defense that could hurt Donald Trump’s already long odds if he follows through on his threat to sue The New York Times: the libel-proof plaintiff doctrine.
In short, it’s the proposition that people whose reputations are already so horribly low can’t prove they’ve been damaged by untrue statements.
In his response to Trump’s request for a retraction of a Times story in which two women accuse the candidate of sexual assault, lawyer David McCraw nods to the doctrine, or at least the philosophy behind it.
“The essence of a libel claim, of course, is the protection of one’s reputation,” McCraw writes. “Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He accessed to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ … Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.”
Case law governing libel, which is defamation in written form, varies state to state, and New York is one of the few states that have addressed the notion of libel-proof plaintiffs since the U.S. Supreme Court in Gertz v. Welch (1974) held that “states may not permit recovery of presumed or punitive damages.”
Since then, a number of courts, especially ones in the 2nd Circuit (see the decision about a “habitual criminal”), have from time to time made use of the doctrine. In 1998, for example, a federal judge in Manhattan dismissed a libel suit filed by mobster John “Boobie” Cerasani, concluding he was “libel-proof.” Cerasani had sued Sony, claiming that a character in Donnie Brasco defamed him. Judge Denny Chin found “that Cerasani’s reputation is so ‘badly tarnished’ that, even assuming the pre-release and official versions of the film are defamatory, he can suffer no further harm and hence no reasonable jury could award him anything more than nominal damages.”
Of course, such “libel-proof” findings are exceedingly rare.
Larry Stein, who teaches entertainment law courses at USC and is a noted litigator for Liner LLP with experience defending against “libel-proof” contentions (see Blake Shelton), says the doctrine is disfavored.
“It would depend on the jurisdiction, judge and what’s being said compared to what was said previously,” he notes. “You get into delicate issues of what kind of additional damage to one’s reputation occurs as a result of allegations.”
Attorney and crisis communications consultant Amy Rotenberg says there is a chance Trump may be libel-proof — at least on certain subjects.
“I think there is a good case to be made that he does not have a reputation left to protect — however, it depends on the nature of the things that are said about him,” Rotenberg says. “That may be true with regard to how he treats women, how he engages in business, any number of things, but you can’t just call him a murderer.”
But a sexual predator? Do the Access Hollywood tapes capturing him admitting to groping women — plus story after story after story after story after story — render his claim of suffering reputational damage dubious? He’s also frequently reminded his supporters not to believe a “dishonest” media, so couldn’t a court take such a statement at face value and credit many Trump followers as not being swayed one way or the other?
Kinsella Weitzman partner Jeremiah Reynolds says, in the context of Trump’s treatment of women, a defense attorney would likely try to play the libel-proof card.
“Bill Simmons, the former ESPN commentator, always uses this phrase ‘the Tyson Zone,’ a point where literally any article could come out about something someone said or did and you would believe it,” Reynolds says. “Has Trump reached that point? I think a lot of people would argue yes.”
If the candidate does sue the Times over a story that his campaign called “coordinated character assassination,” he’ll of course face an uphill battle because as a public figure he’d have to prove the newspaper acted with actual malice — either knowing that the statements printed within the article were false or acting with reckless disregard for the truth. But that doesn’t mean he won’t sue. Let’s not forget: This is a man who once filed a $5 billion lawsuit against an author who called him a millionaire.
“He’s a litigious person and he has the resources to fund something like that,” Rotenberg says. “Even though [a media outlet] could have any number of successful defenses, it could be an expensive and lengthy process to defend themselves. I would say: Media, beware of Donald Trump.”