Ted Boutrous is a partner in the law firm of Gibson, Dunn & Crutcher and global co-chair of the firm’s litigation group.

On October 22, at Gettysburg of all places, Donald J. Trump promised revenge for the women who have publicly accused him of sexual misconduct. “Every woman lied,” he told the crowd of thousands gathered to hear him. “All of these liars will be sued after the election is over.” It’s a post-election plan, he later admitted, “I look so forward to doing.”

Here’s what I look forward to doing: Taking Trump down in court. On October 13, after the GOP nominee threatened to sue news organizations reporting sexual misconduct allegations against him, I pledged on Twitter to defend these outlets for free. I expanded that pledge on October 22 after he attacked the women speaking out against him, offering to defend, for free, anyone Trump sues for exercising their free speech rights. Over 100 other lawyers across the country and across the political spectrum have already offered to join me.


Trump is famously litigious, suing contractors, journalists and the government over the years, and it might sound foolhardy to volunteer to stand between his lawyers and their targets. But I doubt it.

I made the pledge in part as a matter of principle: I am committed to freedom of speech and of the press, and find it intolerable to see a presidential candidate using the threat of defamation suits to prevent legitimate inquiries into his past. But I also made it because it seems like a sure bet. I’ve been a First Amendment lawyer for almost 30 years, and I have no doubt that if Trump follows through and files these bogus lawsuits, he will go down in flames to spectacular defeat. In fact, I’m confident he’d lose every one.

The First Amendment is not on Donald Trump’s side here. As the Supreme Court held in its landmark 1964 decision in New York Times v. Sullivan, which establishes the foundation for modern First Amendment law, the very essence of the First Amendment is “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In other words, free speech by citizens criticizing, attacking and revealing facts about presidential candidates like Trump, even if damaging or harmful, is what the First Amendment is all about.

This is why Trump’s claims against his accusers and the news organizations who publish their accounts are doomed. If he listens to his lawyers, he almost certainly will decide not to file them. For one, he would not fare well in the discovery process, which would allow those he sues to interrogate him under oath, subject to penalty of perjury if he does not tell the truth. The defendants could also obtain testimony from other women about other alleged assaults. Indeed, Trump’s entire history with women would be fair game. Based on what has come to light so far, this truth-seeking process would pose treacherous dangers for him, and his lawyers will no doubt tell him that.

Furthermore, as the most public of “public figures” of all time, he faces insurmountable hurdles in such suits—including the “actual malice” standard established by the Supreme Court in Sullivan, which requires “public figures” to prove by clear and convincing evidence that their accusers and the press knowingly lied or recklessly disregarded the truth. In trying to prove this, Trump would not only have to overcome direct and detailed testimony from his accusers, but he would also face his own corroborating statements, captured by Access Hollywood on videotape, bragging about engaging in the same and even worse sexual misconduct.

If Trump does end up pursuing these cases, he could do worse than lose. He could get hit with monetary sanctions for bringing frivolous claims and be subjected to countersuits by these women, who can argue that he has defamed them by calling them “liars” and who are private figures and thus not governed by the Sullivan “actual malice” standard that restricts Trump’s claims against them. All they would have to prove would be that Trump negligently made a false statement that injured their reputations.

Moreover, many states, like California—the home of some of Trump’s accusers—have laws designed to punish unfounded lawsuits targeting free speech, just like the kind Trump is promising to bring, precisely because they are strategic, bad-faith efforts to squelch speech rather than legitimate actions to obtain compensation for actual injury caused by a lie. The California statute, for example, would require Trump to show at the outset that he is likely to win the lawsuit; if he cannot do so, the court will dismiss the case and require Trump to pay the defendant’s attorney’s fees and costs as a penalty.

But my guess is that Trump knows all this anyway—that he’s aware his chances in court are slim to none, and he doesn’t care. He’s instead using the threat of a lawsuit to silence or to punish those who seek to criticize him. Trump has even bragged about using baseless defamation claims to intimidate his critics. Explaining his rationale for bringing a failed $5 billion lawsuit against the acclaimed journalist Tim O’Brien, who wrote a book about him, Trump recently admitted to the Washington Post that he knew he couldn’t win but the main purpose of the suit was to inflict a punishment on the journalist. “I spent a couple of bucks on legal fees, and they spent a whole lot more,” Trump said. “I did it to make his life miserable, which I’m happy about.”

This behavior is horribly damaging to the principles of American democracy. Even the simple threat of a civil lawsuit for damages can have a serious chilling effect on freedom of speech and of the press. The popular, groundbreaking website Gawker was recently snuffed out of business by just such a lawsuit, brought by a professional wrestler and funded by a billionaire. The shocking $140 million Gawker verdict, which is being appealed, vividly illustrates the danger to free speech posed by defamation lawsuits and has provoked deep concern among news organizations and First Amendment advocates.

This danger, in fact, motivated the Supreme Court’s decision in Sullivan. Indeed, the court found that the “fear of damage awards” can be even more inhibiting of constitutionally protected speech than “the fear of prosecution under a criminal statute.”

It was bad enough that Trump took advantage of these fears as a businessman. But the fact that he is threatening to bring potentially crippling lawsuits to shut down free speech as a presidential candidate on the eve of an election is grossly improper. A presidential election is one of the most important events in a democracy, and it is outrageous for a candidate to threaten citizens for speaking their minds about the candidate’s fitness for office. As the Supreme Court reiterated in 2010 in Citizens United v. Federal Election Commission, the “First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.”

I don’t think I have ever seen a more flagrant affront to the values of the First Amendment and our democratic system. From Trump’s repeated maligning of the press, to his threats to “open up” the libel laws and make it easier to sue, to his declaration of war against the women from his past, he has utterly disregarded the First Amendment—remarkable, by the way, for someone who has been making recklessly false statements about others with impunity from the beginning of his campaign.

The women who have come forward so far and the news organizations that have reported on them are standing firm, but it’s impossible to tell how many other individuals are remaining silent because of Trump’s threats. This simply cannot be tolerated. That’s why it is crucial that all citizens know there are lawyers willing to defend them as they engage in free and open public discussion. And that’s why lawyers around the country, like me, have come forward and said they will defend anyone Trump sues.