Now that Trump has, once again, in a tiresome lifetime of such tiresome threatened lawsuits, threatened a lawsuit for defamation against Michael Wolff and his publisher, Holt, I guess it’s time to return to the legal definition of defamation, i.e., libel. (The above link is to The Atlantic’s story about Trump’s threats of suing Wolff.)
Black’s Law Dictionary definition of defamation:
defamation, n. 1. The act of harming the reputation of another by making a false statement to a third person. If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement’s falsity and the defendant’s fault. 2. A false written or oral statement that damages another’s reputation.
libel, n. 1. A defamatory statement expressed in a fixed medium, esp. writing but also a picture, sign, or electronic broadcast.
The best line in the above link came in these paragraphs from the New York Times, which quoted the New York Times’s lawyer:
Beyond the actual malice rule, Mr. Trump would have to prove injury to his reputation. As Judge Gorsuch put it in a 2011 opinion, libel law is “about protecting a good reputation honestly earned.”
The state of Mr. Trump’s reputation arose during the presidential campaign, when his lawyers asked for a retraction of an article in The Times that reported on complaints from two women who said Mr. Trump had touched them inappropriately.
Mr. Trump’s lawyers called the article libelous and seemed to threaten to sue. David McCraw, a lawyer for The Times, responded that Mr. Trump’s reputation was too tarnished to allow a successful libel suit.
So, to be a bad (or good) defamer, you have to say something demonstrably false about someone and say it publicly. You’d have to know it was false, so…actual malice. And it would have to demonstrably damage the other guy’s reputation.
If his reputation is already damaged, he’s not going to be able to sue you successfully. He can try, but his case will be dismissed pretty quickly.
Speaking of reputations, there’s a category of potential plaintiffs called Public Participants. (What is Trump, if not a Public Participant?) And to accommodate these Public Participants, there’s an odd little lawsuit thingee called SLAPP, or more therapeutically, anti-SLAPP.
Here’s the full definition from the Public Participation Project, with my bolding:
SLAPPs are Strategic Lawsuits Against Public Participation. These damaging suits chill free speech and healthy debate by targeting those who communicate with their government or speak out on issues of public interest.
SLAPPs are used to silence and harass critics by forcing them to spend money to defend these baseless suits. SLAPP filers don’t go to court to seek justice. Rather, SLAPPS are intended to intimidate those who disagree with them or their activities by draining the target’s financial resources.
SLAPPs are effective because even a meritless lawsuit can take years and many thousands of dollars to defend. To end or prevent a SLAPP, those who speak out on issues of public interest frequently agree to muzzle themselves, apologize, or “correct” statements.
Since Donald Trump is unquestionably a Public Participant, if he continues with his threat to sue Michael Woolf, he’d be trying to silence the criticism in the book. No, no, no.
Which is why a number of states have anti-SLAPP laws — laws that permit someone who has been litigiously SLAPPed by a public figure, like Trump, to sue right back.