Defamation Claims

Dear listeners,

Donald Trump has survived motions to dismiss in two different defamation lawsuits he’s brought over news coverage of him. Today, Ken and I discuss how both of these cases involve somewhat close questions about defamation — involving the squishy doctrine of “substantial truth” and an ambiguous question about implied facts — where courts could plausibly have gone either for or against Trump, at least at this motion-to-dismiss stage.

In one case, he’s sued the Pulitzer Prize board over its defense of its awards to The New York Times and Washington Post for coverage of links between Trump’s 2016 presidential campaign and Russia. While the conferral of an award is merely the expression of an opinion — and therefore inherently not defamatory — a Florida judge says the board’s explanation of why it wasn’t withdrawing the awards contained or implied certain factual claims that could be defamation. That doesn’t mean Trump will win his suit, but he’s entitled to have those claims evaluated either at trial or in a summary judgment proceeding, meaning more time and more legal expense incurred by the Pulitzer organization.

Similarly, Trump can proceed in federal court with his lawsuit against ABC News over George Stephanopoulos’s repeated assertion during an interview on This Week that a jury had found Trump liable for rape. In considering whether to dismiss this case, Judge Cecilia Altonaga had to consider what a listener should have assumed Stephanopoulos meant by “rape.” The jury in the E. Jean Carroll case did not find, by a preponderance of the evidence, that Trump had inserted his penis in Carroll, as rape is defined under New York law; the jury’s finding that he did penetrate her in some other manner is reflected in the jury’s finding of liability for sexual abuse. As ABC noted in its defense, a person might colloquially use the term “rape” to refer to any kind of non-consensual penetration; New York law does not govern how we must all describe any given action. But Judge Altonaga writes that, because Stephanopoulos was talking not about Trump’s actions but about the jury’s findings about those actions in a New York court, she cannot herself conclude that his statement was “substantially true” and thus not defamatory. Instead, a jury would have to consider that question.

Meanwhile, Hunter Biden is also getting some traction in a defamation-adjacent case he’s brought against former Trump White House staffer Garrett Ziegler over the publication of once-private materials from his personal computer. Hunter Biden says Ziegler violated the Computer Fraud and Abuse Act by accessing his electronic materials without authorization, and that he also violated a similar California law by doing so. Hunter Biden survived a motion to dismiss in this case, and I got to make Ken talk about why this suit — about what an Illinois resident did with computer information retrieved from Delaware — even belongs in a federal court in California. Meanwhile, Hunter also says Judge Aileen Cannon’s finding that special counsel appointments are unauthorized by law means his gun conviction (in a prosecution by his own special counsel, David Weiss) should be thrown out — an argument that’s unlikely to get much traction in federal court in Delaware for now, but that he’ll be glad he made if the Supreme Court ever ends up backing up Cannon’s aggressive ruling in that case.

Plus, former FBI employees Lisa Page and Peter Strzok have gotten pretty sizable settlements from the federal government over their claims that the release of their embarrassing text messages violated the Privacy Act. And Judge Arthur Engoron continues to suffer long after the New York AG civil case before him reached a verdict — recently, he’s had to argue that his buttonholing by an aggressive landlord-tenant lawyer with theories about Trump’s rights did not constitute an impermissible ex parte meeting requiring his recusal.

We hope you enjoy the episode,

Josh