Democrats need to sue Trump and Republican apologists for defamation

U.S. law and state law allow victims of deliberate lies and fabrications denigrating their character to sue for damages.

One of the extraordinary features of the last three years of Trump apparently defaming countless individuals, including witnesses in impeachment and criminal investigations, is that the victims of these apparently deliberate acts of false accusation have not sued the President or his Republican apologists–who are apparent co-conspirators in a massive cover-up–for damages to which, under the law, they would appear to be entitled.

What is the explanation for this inaction?

First, lawyers are expensive, and it is costly to sue or to defend against lawsuits.  It is likely to be particularly expensive to sue the President and his apparent co-conspirators in the Republican Party. Undoubtedly, many victims have viewed the prospect of suing the president of the United States and his stalwart defenders with considerable trepidation, particularly in view of what appears to be the President’s willingness to subordinate the powers and institutions of the federal government to his private ends.

The second possible explanation may involve an unclear understanding of the law of defamation and what precisely is constitutionally-protected free speech. In the landmark case of New York Times v. Sullivan, the Supreme Court held that when the object of the alleged defamation is a “public figure”, actual malice must be shown to find the author of the speech liable for defamation. Negligent ignorance of the truth is not sufficient.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the freedom of speech protections in the First Amendment to the U.S. Constitution restrict the ability of American public officials to sue for defamation. Specifically, it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation—publication of a false defamatory statement to a third party—he or she must also prove that the statement was made with “actual malice”, meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.
Wikipedia

The decision confers no immunity on a “public figure” who commits defamation, however, except and to the extent the object of the offensive speech is himself or herself a “public figure” as that term has come to be defined in the Constitutional law of defamation.

To stop or slow the avalanche of lies and defamatory statements aimed at critics or opponents of Trump, or simply witnesses in impeachment or criminal proceedings, some major donor(s) should put together a fund which would be used to defray the legal expenses of individuals maligned by Trump and his apparent cover-up co-conspirators.

This will not protect victims from all otherwise defamatory speech, because the Constitution establishes absolute immunity for statements made by Congressmen and Senators on the floors of their respective chambers. They would therefore not be liable for statements made in Congress. However, they would be liable for any defamatory statements made elsewhere, e.g., on television.

Democrats or other critics of Trump, or merely simple victims of defamatory statements made by the President and his Republican apologists–apparent co-conspirators in a massive cover-up–should immediately work to set up such an Anti-Defamation Fund.  This fund would then be used to cover the legal expenses of victims of defamatory statements who decide to sue their detractors, or who are themselves sued for defamation.

The law of defamation has been the traditional way individuals protected their reputations from false accusations. In an era in which Republicans seem to routinely smear opponents of those viewed as hostile to the president, it is time to once again leverage the law of defamation in defense of the truth.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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