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Notes -
Defamation Bear Trap
The legal field is filled with ad-hoc quirky legal doctrines. These are often spawned from a vexed judge somewhere thinking "that ain't right" and just making up a rule to avoid an outcome they find distasteful. This is how an exploding bottle of Coca-Cola transformed the field of product liability, or how courts made cops read from a cue card after they got tired of determining whether a confession was coerced, or even how an astronomy metaphor established a constitutional right to condoms. None of these doctrines are necessarily mandated by any black letter law; they're hand-wavy ideas that exist because they sort of made sense to someone in power.
I've dabbled in my fair share of hand-wavy ideas, for example when I argued that defendants have slash should have a constitutional right to lie (if you squint and read between the lines enough). Defamation law is not my legal wheelhouse but when I first heard about Bill Cosby being sued by his accusers solely for denying the rape allegations against him, I definitely had one of those "that ain't right" moments. My naive assumption was that a quirky legal doctrine already existed (weaved from stray fibers of the 5th and...whatever other amendment you have lying around) which allowed people to deny heinous accusations.
I was wrong and slightly right. Given how contentious the adversarial legal system can get, there is indeed the medieval-era legal doctrine of "Litigation Privilege" which creates a safe space bubble where lawyers and parties can talk shit about each other without worrying about a defamation lawsuit. The justification here is that while defamation is bad, discouraging a litigant's zeal in fighting their case is even worse. Like any other cool doctrine that grants common people absolute immunity from something, this one has limits requiring any potentially defamatory remarks to have an intimate nexus with imminent or ongoing litigation.
It's was an obvious argument for Trump to make when Jean Carroll sued him for defamation for calling her a liar after she called him a rapist (following?). A federal judge rejected Trump's arguments on the grounds that his statements were too far removed from the hallowed marble halls of a courthouse. Generally if you want this doctrine's protection, your safest bet is to keep your shit-talking in open court or at least on papers you file in court. While the ruling against Trump is legally sound according to precedent, this is another instance where I disagree based on policy grounds.
Though I'm a free speech maximalist, I nevertheless support the overall concept of defamation law. Avoiding legal liability in this realm is generally not that hard; just don't make shit up about someone or (even safer) don't talk about them period. But what happens when someone shines the spotlight on you by accusing you of odious behavior from decades prior?
Assuming the allegations are true but you deny them anyways, presumably the accuser would have suffered from the odious act much more than for being called a liar. If so, seeking redress for the original harmful act is the logical avenue for any remedies. The (false) denial is a sideshow, and denial is generally what everyone would expect anyways.
But assuming the allegations are false, what then? The natural inclination is also to deny, except you're in a legal bind. Any denial necessarily implies that the accuser is lying. So either you stay silent and suffer the consequences, or you try to defend yourself and risk getting dragged into court for impugning your accuser's reputation.
My inclination is that if you're accused of anything, you should be able to levy a full-throated denial without having to worry about a defamation lawsuit coming down the pipes. You didn't start this fight, your accuser did, and it's patently unfair to now also have to worry about collateral liability while simultaneously trying to defend your honor. Without an expansion of the "Litigation Privilege" or something like it to cover these circumstances, we create the incentive to conjure up a defamation action out of thin air. The only ingredients you need are to levy an accusation and wait for your target's inevitable protest. That ain't right.
Every time you write about legal stuff I just feel more and more convinced that the rules are made up and the laws barely matter.
What is the point of a statute of limitations if it can be changed after the fact to include things previously protected by that statute?
What is the point of the trial related amendments if you can just have your reputation smeared and ruined by the media without anything vaguely resembling "due process"?
What problem are civil courts solving other than 'how to make lawyers rich'?
Plea deals destroying incentives to get your day in court. Prosecutors seemingly immune to any consequences of malpractice.
An old movie keeps coming up in my mind. It took me an hour of searching to find it based on my vague recollections. Interstate 60. There is a section of the movie where the main character (on a mythical road trip) takes a stop in a town called Morlaw. The entire town is comprised of lawyers that are constantly suing each other for everything (get it, Morlaw -> More Law). Any unlucky idiots that find their way to the town get caught up in the web of suing very quickly.
How does the protagonist escape? Do they make a compelling argument that this is insane? Nope, that doesn't convince any of the lawyers. They just see that as another reason to sue him.
The way the protagonist escapes is by making a call to a friend he met on the road. An ex-marketer that is dying and decides to go on a personal crusade against lying. This ex-marketer has a bomb vest strapped to him, and seems willing to use it. Yup, that's right, it takes literal terrorism to extricate the main character from a web of lawyers. The ex-marketer decides to stay around Morlaw to keep them in line.
Our legal system increasingly resembles a system of "might makes right" if you have enough powerful people on your side then the law can literally be what you want it to be. It doesn't feel like there is a legible system of rules where an underdog that is correct or in-the-right can beat the system. In the end someone might make the same realization that the ex-marketer makes. "Why play by your rules when I'm always going to lose? Why not bring violence to the table?"
The far left and the right basically agree at this point that the law is made up at this point. It’s just human interpretations of what words mean which can be manipulated into anything.
For something not culturally war. What about student athletes. One day they were limited. Next day popular opinion changed. No laws were passed.
https://www.forbes.com/sites/kristidosh/2021/06/21/what-does-supreme-court-decision-against-ncaa-mean-for-name-image-and-likeness/?sh=71bcd9bf500c
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Civil statutes of limitations aren't put in place to protect potential defendants; they're put in place to serve policy goals determined by the state legislature. If those policy goals change the SOL can change along with them.
Most of the trial related amendments are specifically applicable only to criminal cases. The only one unique to civil cases, the Seventh Amendment requirement of a jury trial, has notably not been incorporated under the 14th Amendment. The Fifth Amendment right to due process has, but I'm not sure what kind of process you're looking for. These amendments only apply to the government, not private actors, so there's no due process requirement the media has to go through to report bad things about you. If they're actually defamatory then there's always the option of suing.
With certain limited exceptions (class actions), lawyers don't come to clients looking to get rich. Lawyers only get involved when the situation has gone so far that the parties can't resolve matters among themselves. You can probably get by your whole life without needing to go to court, and I hope you do. But when you've been aggrieved it's the only option for justice.
Again, that's criminal, not civil, and has nothing to do with the Trump lawsuit. That being said, most civil cases settle before they ever get to court. Usually something has to go horribly off the rails for an actual trial to take place. But trials are time-consuming and expensive and it's usually better for everyone that things don't get that far, since both parties can usually see where things are going. The first possibility is that this woman really hated Trump and refused to settle because she wanted to get a jury verdict. This is unlikely because I doubt she is a woman of any serious means and litigation is expensive. If Trump had made her a serious offer, the terms of most attorney engagement letters would practically require her to accept it. Obviously, it's ultimately her decision, but if her lawyers took the case on a contingency basis then they're fronting all of the expenses in the hope of getting a decent payout. If they're presented with what they believe is a reasonable offer then they're loathe to continue shelling out cash for diminishing returns. If it gets to this point then in order to avoid settlement the plaintiff will usually have to start paying by the hour and fronting money for expenses for all future work. Since most clients aren't that convinced in the value of their cases to do this, they usually settle. Going to another attorney isn't a realistic option, either, because the current attorney has a lien on the case for the value of all the work that's been done up to that point. Any award the new attorney gets would be subject to deductions in the amount of that lien. Lawyers in general don't like taking on cases in the middle, and having to give up a substantial part of their fee to cover a lien is usually a nonstarter. What's more likely is that Trump refused to settle because he has the means to defend the suit and his public stature means that any settlement would be in the news and viewed by the public as an admission of guilt, even if the settlement expressly denied guilt.
Every law put in place to serve a policy goal determined by the legislature. This is a banal statement. The question is “what is that goal.”
SOLs serve two purposes — one to allow finality and the second is to be able to provide an appropriate defense (ie memory and witnesses go stale).
Both (but especially the second) are in place to protect potential defendants. Thus, the goal behind the original SOL was by-and-large to protect potential defendants.
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Of course the rules are made up—in legislative sessions, where the democratically elected representatives decided this statute-of-limitations business was unjust. How else do you want a change to happen? It is the job of the courts to enact the laws as they stand, not as they once stood.
It’s funny that you phrase it like that when talking about a defamation suit, where Carroll applied due process to keep her reputation from being smeared and ruined. And that your example for an “underdog” is a billionaire, celebrity, and politician with millions of loyal followers.
Let’s imagine a hypothetical with no civil suits. Trump assaults Carroll in 198X. Carroll, for whatever reason, lets the SOl run out. She later decides to write a tell-all book. Trump can’t sue her, so he just uses his immense popularity, personal social media platform, etc. to ruin her reputation across America. End result: victims are incentivized to shut the fuck up about anything which didn’t make it to a court of law, even if it really did happen.
Civil suits make Trump’s counterattack a liability. They also make Carroll’s claim a liability, discouraging her from falsifiable or malicious statements! This seems like an obvious improvement over the case where the most popular guy gets to shit on whoever he wants by default.
“Get thee behind me, fedposter.”
Is it Carroll vs Trump, or is it Trump vs Blue Tribe?
The impact of all of these are relative. Billionaire is a lot relative to me, and very little compared to state and quasi-state entities with GDP measured in the trillions. Politician is very influential relative to me, and laughable compared to big business, big media, the federal bureaucracy, and half the country. Millions of loyal followers is a lot compared to me, and very little relative to the dozens of millions within Blue Tribe as a whole.
You want to appeal to the process, because that keeps things clean. But Trump's supporters emphatically do not trust the process, and do not agree that it is being applied impartially. Every time the "process" reveals a novel convolution to the detriment of their interests, their trust decreases further, as it should.
It seems likely that Blue Tribe will get Trump eventually. If this doesn't do it, they'll roll the dice on something else, and something else after that, and so on until the day he dies. All it costs them is the trust of an increasingly furious and desperate other half of the country.
Funny, that's exactly how I'd describe the current situation. Making this claim requires very specific assumptions about the framing, which are not shared. Because those assumptions are shared by 90% of media workers, academics and government staff, they gain a veneer of legitimacy through repetition, but that does not make them legitimate.
Yes, I am making assumptions. So are Trump’s defenders. I think mine are better-founded.
It is absolutely Carroll v. Trump. Strip away all the political theatrics and you’d still have a valid case. Two if you count defamation. And I’ve laid out my reasons why I believe defamation laws, and civil suits in general, are useful.
The fact that 90% of Democrats line up against Trump does not make the underlying law illegitimate.
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When we've got serious claims in this thread that anyone ought to be able to win a 30-year-old he said / she said sexual assault case against Trump because of his known bad character, I think the answer is obvious.
And of course conservatives might dismiss this sort of thing with "well then you shouldn't have had such bad character".
Link? If you’re thinking of me, I sure wouldn’t sign on to that.
https://www.themotte.org/post/483/culture-war-roundup-for-the-week/97645?context=8#context
Close enough, I guess.
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The simple answer is a higher standard of proof for a 198x rape claim than 51%. And perhaps a civil suit testimony can’t be used for a criminal perjury charge. Perhaps Trump is a special case but he’s been investigated for 6 years even before he was POTUS. Testifying under oath does represent a huge risks to him.
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That seems an odd claim to make in regard to a case in which a former President was found liable by a jury. it is also an odd claim to make re a legal system in which criminal defendants win cases every day, in which asylum seekers win cases every day, in which large corporations lose cases to individual every day, etc, etc, etc..
Why? The former president is the underdog here.
Yes, I am sure that, had he won, underdogs the world over would have rejoiced that the system works.
Why would they? Being railroaded into a trial where your innocence is impossible to disprove because it's about something that happened 30 years ago is the system failing. If that happens and he's found not guilty, that's the system still failing, just not as badly.
In order for the system to not have failed, New York would have had to not have extended the statute of limitations at all (especially since it was done specifically to get Trump).
Perhaps, but OP's claim was not that Trump was treated unjustly, but that underdogs, can't win. A very different claim.
He didn't say that underdogs can't win, he said that the rules don't lead to the underdog winning. I would agree that this is true when the rule is "no statute of limitations". There's really no way to win with this rule; the results are losing badly or losing but not too badly.
And even if you think being found innocent after a trial that never should have happened is a "win", it's a win despite the rule, not because of it.
I don't understand what you mean. First, if someone loses, then someone wins. Why the loser in this situation would be the underdog is not particularly clear to me. One would think that anything that makes it hard to sue, including statutes of limitations, would benefit the overdog, not the underdog, because the justice system is the only method that the underdog has to hold overdogs to account. Underdogs, by definition, don't have economic or political power.
Nor is it clear to me why you think that limiting the statute of limitations guarantees that the plaintiff will win. The plaintiff has the burden of proof, after all.
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