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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.
Atleast with this case there’s a bit of statute of limitations issue. Shouldn’t someone at some point not have to own up to “I use to be a very bad person” - like I don’t know almost 3 decades seems enough.
Or let’s say a prominent politician use to be an escort (cough Kamela Harris; more of a mistress) and some dudes bragging about how he paid $500 to bang the first women POTUS. I think it’s reasonable she shouldn’t have to say yea I was a whore. But she’s now defamed they guy.
Also in this specific case I don’t think Trump really got a chance to testify in court. In part because he’s the most investigated guy ever and anything he misstates would be open to perjury. And also give the opposing attorney a chance for a fishing expedition on anything (like Jan 6).
This suit came about due to a one-off law passed about a year ago, the Adult Survivors Act. The whole point was allowing a window for victims to sue in spite of any statute of limitations. It appears to be following up to a similar law passed in 2019, so I doubt that it was all set up to nail Trump in particular.
I find the idea that he can't testify for fear of perjuring himself a bit silly. I don't think attorneys are allowed to go fishing once the witness has entered the Zone of Truth, either. (@ymeskhout, can you confirm?) But setting that aside, his defense chose not to call any witnesses, even ones who aren't under half a dozen investigations. That's either an own-goal, or an attempt to make his supporters question the whole thing. I dunno.
Who could he have called as a witness? It’s a 30 year old case. She can’t even say what year it happened. He can’t produce some dude who could testify I was at dinner with him on the alleged incident.
IMO there is something strange with changing statute of limitation decades later even if this wasn’t completely about Trump.
Plus any potential witness they called would be liable to face non-stop legal action from the state of New York.
This is the thing I keep coming back to, and it's the same thing that pissed me off about the Kavanaugh hearings, where the accusations were repeatedly framed as "credible". OK, it's true that the accusations aren't impossible and the accused surely can't disprove them, so that does meet some definition of "credible". I would probably agree that it rises to the level of extending some degree of empathy towards the putative victims, particularly if you're actually going to personally interact with them. Nonetheless, what the hell is the accused expected to do in such a situation?
When I think of parties that I was at, women that I did hook up with, women that I didn't hook up with, and so on, I have absolutely no idea how I could even begin to refute a claim about something that supposedly happened 20 years ago. Was I at a given person's house on an unspecified day in an unspecified year, drinking heavily? I don't know, possibly. Probably even, for some specified houses and date ranges. Could I account for who was there on a given unspecified evening? Definitely not. Are there women that I had sex with at the time that I only barely remember now? Definitely so. Are there others that were present that I won't recall at all? Definitely so. With lack of specificity that seems to still count as a "credible accusation", I don't see any plausible path to actually being able to disprove it. At that level, it actually sounds entirely reasonable to start bringing things up like, "she's not my type" or "wait, you're saying that this happened in a dressing room and no one at all noticed?". The accused can't really deny the time and place because there is no time and they may have gone to that place, but they can take a stab at whether the story seems actually plausible at all.
It depends on what other evidence is available at the time. If there's a recording of you talking about how you like to grope women because they'll just let you do it, it might be enough to move the needle to 51% in a pure he-said-she-said.
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