Is Trump really a “Libel-proof” Plaintiff?

Donald Trump threatened to sue the New York Times for defamation based on a Times story about women accusing him of sexually assaulting them. In responding to this threat, the Times denies that there is anything defamatory about its article and mentions that “[n]othing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.” The Times may be right about that, but it’s far from a foregone conclusion. And, in a mad dash to virtue signal, "experts" all rushed to refer to Trump as "libel proof."

There is such a thing as a “libel-proof” plaintiff. These are people whose reputations are so fiddle-fucked that you can literally say anything you want about them. A California federal court defined this type of plaintiff as “[a]n individual who engages in certain anti-social or criminal behavior and suffers a diminished reputation may be ‘libel proof’ as a matter of law, as it relates to that specific behavior . . . . By extension, if an individual’s general reputation is bad, he is libel proof on all matters.” Wynberg v. Nat’l Enquirer, 564 F. Supp. 924, 928 (C.D. Cal. 1982).

Traditionally, this doctrine has been applied to plaintiffs who have a reputation for criminal conduct. The seminal case of Cardillo v. Doubleday & Co., 518 F.2d 638 (2d Cir. 1975) dealt with a book published about Cardillo, who was serving time for his involvement in several criminal enterprises. The book got some details wrong, and Cardillo sued for defamation. The court found that, with Cardillo’s reputation already so tarnished by his criminal history, the contents of the book could not have caused any real harm to his reputation. Fearing that this doctrine could shut down a number of otherwise legitimate defamation suits, subsequent cases tried to keep the doctrine from expanding. See, e.g., Buckley v. Littell, 539 F.2d 882, 888-89 (2d Cir. 1976) (rejecting argument that William F. Buckley could be libel-proof based on his controversial political positions); Sharon v. Time Inc., 575 F. Supp. 1162, 1168-72 (S.D.N.Y. 1983) (finding that former Israeli Minister of Defense Ariel Sharon was not libel-proof in context of article accusing him of permitting and encouraging murder of Palestinian refugees). This is not to say that the libel-proof plaintiff doctrine is limited to those guilty of criminal activity, but courts tend to be hesitant to expand it beyond that context. Or at least courts in the 2nd Circuit, where Trump would be most likely to sue the Times.

Depending on who you speak to, Trump may or may not have an abysmal reputation in all respects. But the Times’s article is focused solely on his reputation as someone who abuses and objectifies women. With Trump’s numerous statements dating back decades about how he objectifies women and his recently leaked statements he calls “locker room talk,” it’s hard to see how his reputation on this point could get any worse. His reputation, from the perspective of most people I know, is about as fucked as Singapore hooker during fleet week.

At the same time, though, Trump doesn’t quite fit the mold of the typical libel-proof plaintiff. He has never actually been found guilty (yet) of sexual harassment or assault. And while his statements about women may be objectionable and lead to a reasonable inference that he has committed sexual assault, he has not admitted to this. A number of his supporters still do not believe he has sexually assaulted women. In fact, there are still millions of Americans who continue to support Donald Trump, and it is probably still possible to harm his reputation in their eyes. Fortunately for the New York Times, though, they have plenty of other defenses under the First Amendment that make any Trump-led defamation claim against the Times as doomed as his flaming dumpster fire of a campaign.

But, even now, to call him "libel proof" probably overstates the doctrine. But, worry not, there's still another debate to come, and the Orange one seems to be determined to double down on the stupid every 24 hours. At some point, he just might get there.

Marc Randazza is the national president of the First Amendment Lawyers Association

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