The absurdity of Donald Trump’s lawsuit threat against the New York Times

Yeah, he’s going to lose.

CREDIT: AP PHOTO/CAROLYN KASTER
CREDIT: AP PHOTO/CAROLYN KASTER

Less that a week after video surfaced showing Republican presidential candidate Donald Trump bragging about kissing women without permission and grabbing them “by the pussy,” the New York Times printed allegations from two women who say that they were sexually assaulted by the GOP nominee.

Trump responded almost immediately with a lawsuit threat:

This is hardly the first time that Trump used the threat of litigation to attempt to silence critics. But his lawyers probably should have told him that he was wasting his money paying them to go after the New York Times. If Trump pursues a case against the Grey Lady, he is all but certain to lose.

The New York Times knows something about libel law. Indeed, the seminal First Amendment case setting the bounds of libel suits against public figures is New York Times v. Sullivan, a 1964 Supreme Court decision protecting the Times after it published an advertisement that upset white supremacists in Alabama.

New York Times held that, at least when a public figure brings a libel suit — and a major party candidate for the presidency unquestionably is a public figure — that suit cannot prevail unless the defendant made false statements against that public figure “with knowledge that it was false or with reckless disregard of whether it was false or not.” Trump can hardly hope to clear this very high bar.

For one thing, the Times published its report on Trump’s two accusers just days after video evidence showed Trump bragging about the same sort of conduct these women accuse him of. One woman says that Trump grabbed her breasts and tried to grope her under her skirt while she was sitting next to him on a flight. The other says that Trump kissed her without permission while she was a receptionist working for a company that did business with the GOP nominee.

As multiple women come forward with the same allegations, Trump starts to look more and more like Bill Cosby.

The fact that these two women allege the very same conduct Trump bragged about — kissing without consent and attempting to grab one of the women “by the pussy” — does not definitively prove that they are telling the truth. But it does lend credibility to their claims.

The women’s credibility is further enhanced by several other factors. For one thing, as the Times notes in its report, the two women’s allegations “echo those of other women who have previously come forward, like Temple Taggart, a former Miss Utah, who said that Mr. Trump kissed her on the mouth more than once when she was a 21-year-old pageant contestant.” And Taggart is hardly the only woman to come forward with similar claims against Trump in recent days.

As multiple women come forward with the same allegations, Trump starts to look more and more like Bill Cosby.

Additionally, the Times did not simply print the two women’s allegations without corroborating them. Rather, as the Times explains, both women “shared what happened to them with friends and family,” and the Times spoke with many of these individuals.

Notably, one of the two women told her family of Trump’s alleged actions “immediately afterwards.” As the Times recounts, the woman came home from work that day, and when her boyfriend at the time asked her how her day had gone, the woman “paused for a second, and then started hysterically crying.” The woman then told her then-boyfriend what Trump had done. The Times spoke with this former boyfriend and confirmed that this conversation took place.

Again, the fact that this woman spoke of her allegations against Trump long before he became a presidential candidate — Trump allegedly kissed this woman in 2005 — adds considerable credibility to her claim. Trump cannot argue, for example, that she is making her allegations up in order to derail his presidential candidacy if she originally made the allegations a decade before Trump began his bid for the presidency.

All of which is a long way of saying that the New York Times should not worry too much about Trump’s lawsuit. Again, Trump can only prevail if the New York Times published false information “with reckless disregard of whether it was false or not.” It is likely that the allegations the Times published aren’t false at all, and truth is an absolute defense against Trump’s libel suit.

Even if the two women’s allegations proved to be false, however, Trump is exceedingly unlikely to be able to prove that the Times acted with “reckless disregard.” The Times published allegations that were consistent with Trump’s own words. Those allegations track similar allegations from other women. And the Times spoke with other individuals who lend credibility to the women making the allegations.

To be sure, there may be some kind of strategic thinking behind Trump’s litigation threat, as the Washington Post’s Robert Costa notes.

Nevertheless, if Trump files suit against the New York Times, expect him to lose.