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Trump tried to use fair report privilege to dismiss E. Jean Carroll defamation claim

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  1. Libel and Privacy
"[T]his is another instance of Trump using the law as a sword and shield," writes RCFP's Gabe Rottman.
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Back in March 2021, Reporters Committee Executive Director Bruce Brown and I had a piece in Lawfare where we noted the dissonance in former President Donald Trump’s efforts to use the presidency as a shield against defamation claims related to his private conduct, while calling for “opening up” the libel laws and bringing defamation cases for coverage he perceived as critical.

Interestingly, in the trial that concluded last week with a federal jury verdict against the former president in the E. Jean Carroll case, Trump also tried something in that vein by advancing an argument based on the fair report privilege — a key protection for members of the news media covering legal, legislative, and other official proceedings — in a failed effort to have the defamation claim in Carroll’s second lawsuit dismissed.

For those not following the matter closely, here’s some detailed background. In a 2019 book, Carroll, an author and advice columnist, alleged that Trump raped her in a dressing room at the Bergdorf Goodman department store in the mid-1990s. In various statements, then-President Trump accused Carroll of lying to sell her book. Carroll sued the president in New York state court for defamation.

That case proceeded for 10 months before the Justice Department intervened and asked to substitute the government as the defendant under the federal Westfall Act, which provides that victims of federal officials who commit a civil wrong — a tort — in the course of their employment can recover directly from the United States. Had that argument succeeded, it would have ended the case, as the government is immune from civil lawsuits unless it affirmatively waives that immunity, and it hasn’t done so for defamation claims.

Because of the Justice Department’s intervention, the case then moved to federal court, where Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York rejected the government’s motion, finding that the president is not an “employee” of the federal government under the Westfall Act and, even if he were, the president’s statements were made in a private capacity.

On appeal, the U.S. Court of Appeals for the Second Circuit, in a split opinion, held that the president is an employee but — in an unusual move — asked the highest “state” court in the District of Columbia to decide whether Trump was acting in the scope of his employment as president under D.C. law. That court, the District of Columbia Court of Appeals, politely demurred, saying that the question is one for a jury, but offered interpretive guidance. The Second Circuit then sent the question back down to Judge Kaplan, where it is currently pending.

As all of this was going on, the New York Legislature passed the Adult Survivors Act, which created a one-year period where persons who allege they were sexually assaulted as adults could sue, irrespective of the statute of limitations. In September 2022, Carroll announced that she would sue Trump under the new law for the alleged sexual assault itself once the law became effective in November. And, on Oct. 12, 2022, the court rejected another attempt by Trump to substitute the United States as a defendant in the original defamation case.

That night, Trump posted a long statement on Truth Social that, among other things, called the allegations a “Hoax and a lie,” said Carroll “made up a story” about the alleged assault, claimed she “changed her story from beginning to end” during an Anderson Cooper interview to “promot[e] a really crummy book,” and criticized the legal system as a “broken disgrace.”

Last November, Carroll filed her second suit under the new law and included a defamation claim based on the Oct. 12 Truth Social post. Last week, the jury found that Carroll hadn’t proven the rape allegation by a “preponderance of the evidence” but had proven sexual abuse and the elements of the defamation claim under that standard, and awarded $5 million in damages.

Now back to the fair report privilege issue. Before trial, Trump argued that the defamation claim based on the Oct. 12 post should be dismissed as a “fair and true report of any judicial proceeding,” otherwise known as the fair report privilege. The New York State Assembly originally created that privilege, which also applies to legislative and other official proceedings, to protect newspapers covering government business and extended it to any entity in 1940.

In essence, Trump argued that his Oct. 12 post was just a summary of his defenses and denials in the first Carroll case, along with some background information. And the legal question for the court was whether an ordinary person would read the statement as about the first case and, if so, read it as a fair and true report of the case.

The judge said no to the first question, and, even if yes, he held that it added to what Trump had said in the first case in a way that a reasonable juror could perceive as alleging worse conduct by Carroll. For instance, Trump’s post didn’t just offer the affirmative defense that his statements about Carroll trying to sell a book were true. Instead, he offered the aforementioned commentary around the Anderson Cooper interview.

Aside from the substance though, this is another instance of Trump using the law as a sword and shield. As candidate and president, Trump called for changes to the libel laws to make it easier for public figures to sue people perceived as critics, and then used the cloak of his office to try and kick Carroll’s first defamation case against him. And just as he was doing that, his campaign brought defamation claims against multiple media outlets for news and editorial content on Russian interference in the 2016 election — all of which have been dismissed.

It also illustrates how these various limits on defamation claims — be they constitutional or statutory protections like the fair report privilege in New York — know no party or ideology. They benefit everyone, not to mention democratic discourse, and the former president’s efforts to play it both ways on defamation laws — criticizing protections for free speech and then relying on them when the chips are down — are a stark reminder of that fact.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.

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