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Oct. 18 — The New York Times used an uncommon defense last week in response to Republican presidential nominee Donald J. Trump’s claim that the news organization committed “libel per se.”
Trump’s attorney sent the publishing house a letter demanding it remove the “libelous article” after the New York Times published an article featuring two women who claimed Trump touched them inappropriately.
Libel is a published false statement that damages a person’s reputation.
The newspaper responded in a letter that the article had no effect on “the reputation that Mr. Trump, through his own words and actions, has already created for himself.”
Trump has “bragged in a number of different contexts over the past decade about engaging in this kind of behavior, so a story saying he engaged in this behavior can’t damage his reputation,” David A. Schulz told Bloomberg BNA.
Schulz is an attorney with Levine Sullivan Koch & Schulz, LLP, New York, who specializes in First Amendment issues. He has represented The New York Times Company on other libel and access cases.
The behavior referenced in the New York Times’s letter included Trump bragging about “intruding on beauty pageant contestants in their dressing rooms” and allowing a radio host to refer to his daughter, Ivanka Trump, as a “‘piece of ass.’”
The newspaper’s defense that Trump is libel proof is an uncommon but sound defense that has been successfully employed in libel and defamation cases, including against notorious public figures such as mobsters, Schulz said.
An alleged member of the Bonanno Crime Family, John Cerasani, sued producers and distributors of the film “Donnie Brasco” for defamation in 1997.
The movie was based on the life of undercover FBI agent Joseph D. Pistone, who called himself “Donnie Brasco” and infiltrated the crime family for six years.
The federal district court in New York dismissed the claims in Cerasani v. Sony Corp. , 991 F. Supp. 343 (S.D.N.Y. 1998 ).
“Cerasani’s reputation is so ‘badly tarnished’ that, even assuming the pre-release and official versions of the film are defamatory, he can suffer no further harm and hence no reasonable jury could award him anything more than nominal damages,” the court said.
Such claims should be dismissed to avoid the costs of defending against the claim of libel, which can themselves impair vigorous freedom of expression, it said.
The court cited numerous instances that rendered Cerasani libel-proof:
The doctrine was also successfully used in what the Second Circuit called a “grudge match” between pornography publishers.
In 1983, Robert Guccione, the publisher of Penthouse magazine, sued Larry Flynt, the publisher of Hustler magazine, for libel.
Hustler had printed that Guccione was married and also had a live-in girlfriend. Adultery was a crime under state law.
The Second Circuit held that Guccione’s claim failed as a matter of law, both because the statement at issue was substantially true and because Guccione was “libel-proof” with respect to an accusation of adultery, in Guccione v. Hustler Magazine, Inc. , 800 F.2d 298 (2d Cir. 1986).
Guccione’s reputation had already been established by the time Hustler ran its article, the court said.
He had several times told reporters that he was separated from his wife and living with his girlfriend; he testified that friends, family and business associates knew of the adultery; and several widely circulated publications such as Newsweek magazine discussed his adulterous reputation, the court said.
Cases should be dismissed when “an allegedly libelous statement cannot realistically cause impairment of reputation because the person’s reputation is already so low,” the court said.
Even false statements should be dismissed, it said.
The reasoning is that libel claims “impair vigorous freedom of expression,” the court said.
The court warned that the doctrine should be applied “with caution,” because “few plaintiffs will have so bad a reputation that they are not entitled to obtain redress for defamatory statements.”
If Trump sued the New York Times, “he won’t get past a motion to dismiss,” Schulz said.
The New York Times’s letter is “a reflection of the fact that the threat here is so preposterous, so baseless, that it warranted a clear rebuke,” Schulz said.
Newspapers get libel threats all the time, he said.
“How they respond depends on the facts of the story,” Schulz said.
It’s “hard to imagine a situation where you’d have a more ironclad defense” to a story than this one, he said.
“It’s troubling that a candidate for president would think this is an appropriate thing to do—to try to silence the press,” Schulz said.
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Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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