For an insightful and updated analysis of the issues raised in the article below, on the need of the Democrats to sue Donald Trump and his enablers for defamation, see,
Alexander Vindman, “Can Litigation Help Deradicalize Right-Wing Media?” LAWFARE, March 15, 2021 (10:58).
REPRISE: Demmocrats need to sue Trump and Republican apologists for defamation
Article originally published on November 22, 2019.
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.
On the risks of being sued for defamation in Virginia, see
“Devin Nunes, Johnny Depp lawsuits seen as threats to free speech and press,” Washington Post, December 22, 2019.
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.
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 or 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
March 16, 2021
Suing Trump and other purveyors of malicious lies remains probably the most effective weapon in the Democrat#’ arsenal for countering Trump’s and Republicans lies and misinformation, and ultimately puncturing their propaganda bubble.
Potential plaintiffs are often deterred by the prospect of endless and costly litigation with people like Trump.
To counter that prospect, which is very real, proponents of a political system not characterized by massive lies and misinformation should establish a fund or foundation, e.g., with an initial capitalization of $1 billion, to allay such concerns while at the same time putting potential defendants on notice that if they engage in defamation, they will be held accountable. They must know that plaintiffs will come after them, relentlessly, and that they are backed up by very deep pockets.
This is a weapon that can be used today, or very soon.
First, set up the foundation or Fund, and secure its funding at a level if $1 billion or more.
Second, start suing those who are spreading malicious lies and engaging in defamation.
Get right to it!
The Tenchant Observer