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On Oct. 12, 2016, The New York Times published a story entitled, “Two Women Say Donald Trump Touched Them Inappropriately.”
A year later, despite a threat from his attorney that Trump would have “no option but to pursue all available actions and remedies,” Trump hasn’t sued. That’s significant because Wednesday, the statute of limitations expires on a libel claim brought in New York over the publication’s groping story. In theory, Trump could try to get around the deadline by filing a complaint in a different state, but with judges often being strict about jurisdiction — Trump can consult his wife about this subject — it can be said with near certainty that Trump won’t be suing The New York Times over that infamous article.
A threat of legal action that doesn’t actually lead to a court filing falls under a category of speech known as bluster. Some argue that news publications shouldn’t cover intimidation lest it encourage bullying. For example, in reaction to The Hollywood Reporter‘s article last week stating Harvey Weinstein’s attorney was “preparing” a lawsuit against The New York Times over its latest story about a powerful figure behaving inappropriately toward women, one reporter at The Wall Street Journal tweeted that his paper had a policy against covering threats until the actual lawsuit came. We’re more lenient here (while having stricter standards in other areas of legal coverage), but also think that follow-up is important.
Why is the empty retraction demand (still available on Trump’s website) from attorney Marc Kasowitz significant?
For starters, Trump made libel reform an actual promise to those who supported his presidential candidacy. As the leader of the executive branch of the federal government, however, Trump is fairly limited in what he can do, as defamation claims are largely governed by state law. He can nominate federal judges, who sometimes preside over these cases or are asked to settle constitutional issues. So far, with appointments like Neil Gorsuch to the Supreme Court — who has shown a deference to the First Amendment — Trump hasn’t made any big swings toward disrupting the status quo as it relates to defamation law. Thus, his failure to go after The New York Times amounts to a missed opportunity. What’s more, fighting as a defendant in defamation cases, Trump has learned to appreciate certain First Amendment protections. Or at least, his lawyers have (here and here).
Next, while some may respond that Trump now has better things to do than litigate a claim against The New York Times, hardly a day goes by when Trump isn’t tweeting about “fake news.” He’s used his bully pulpit to delegitimize the mainstream press. He’s obviously obsessed with unflattering information about himself and his administration, yet isn’t willing to take an obvious action that would become symbolic of his willingness to actually fight with more than words.
Which leads us back to the issue of bluster.
How should reporters regard statements Trump makes like the one he tweeted today? (“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License?”)
Waiting for legal or regulatory action to occur before reporting on threats is certainly one strategy, although not even actual filings are always evidence of much. For example, former Fox News host Eric Bolling filed a summons in New York Supreme Court against journalist Yashar Ali in August over an allegedly defamatory story about lewd text messages. Two months later, Bolling hasn’t followed up with an actual complaint and there’s no indication in the court record that the summons was ever served. Coincidentally or not, Bolling is represented by the Kasowitz law firm — the same one who threatened The New York Times on behalf of Trump. (Meanwhile, Ali is represented by Patty Glaser, who was just hired by Weinstein. Small world.)
Maybe it comes down to credibility, which is one of the big reasons that in our view, following up is crucial.
All of this isn’t to say that by passing on suing The New York Times, Trump hasn’t had any impact on media law in the past year. Most significantly, there have been leak investigations. And the discourse over “fake news” might be shaping the legal environment too. This summer, for instance, ABC News traveled to the heart of Trump Country to defend itself from defamation claims only to walk away in the middle of trial and pay out $177 million in settlement money.
After Trump threatened The New York Times one year ago, we wrote that it was cause for a new free speech protection law in the guise of a federal anti-SLAPP statute: the kind of procedural change where judges would examine the merits of a defamation case before allowing claims to move any further. Since then, things are headed in the opposite direction with appeals courts now reviewing the application of state SLAPP laws in federal court. That’s in due part to something that Trump did before ever running for political office.
It might be too late for Trump to sue The New York Times over that story about groping. It’s not too late for U.S. Congress to step up to discourage attacks on the First Amendment.
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