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Thursday, October 13, 2016

NYT to Trump: Go ahead and sue (Updated)

When I went to law school, one of my dream jobs was to be general counsel to The New York Times. So I have great respect for this letter responding to Trump's lawyer's retraction demand. The final paragraph is the meat, subtly arguing both the accuracy of the statements, their public import (and thus reminding that Trump is a public figure), and the absence of malice. The second paragraph is a bit more gratuitous, in essentially suggesting that Trump has made himself such a sleaze with his own public statements and actions that he is libel-proof. All-in-all, nice work (and the kind of ballsy, "let-me-tell-you-how-things-are, son" stand that I do not believe I have it in me to take with another lawyer--a conversation I was having with several people during break-fast yesterday).

It is interesting that one of the (many) political norms Trump has obliterated this election is that high-level government officials do not bring defamation actions, not only because Sullivan sets such a high hurdle, but also because it looks weak politically. But because Trump has made both the press and the First Amendment some of his punching bags, that weakness is gone.

The full letter:


















Update: From the National Constitution Center Blog comes this essay on Barry Goldwater's successful suit against Ralph Ginzburg over something he published during the 1964 election about Goldwater's fitness. Goldwater managed to show actual malice and win a $ 1 million+, upheld on appeal. A few points: 1) It is telling that Goldwater waited until after the election, when he was (temporarily) out of office; 2) This was in the early days of the Sullivan regime and I wonder whether it would come out the same way today; and 3) Everyone hated Ralph Ginzburg, so he lost cases other people would win.

Posted by Howard Wasserman on October 13, 2016 at 03:33 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink


I read second paragraph as a different kind of shot across the bow: a defamation case is one of the rare kinds of cases that places the plaintiff's reputation and character at issue. That, in turn, can make for some interesting discovery.

Posted by: Adam Zimmerman | Oct 16, 2016 10:10:25 AM

Interesting. And counsel might not be a problem--several big-time DC attorneys have offered to defend NYT and other pubs pro bono.

Posted by: Howard Wasserman | Oct 15, 2016 5:13:32 PM

Dunno. I would think normally there's nothing in it for a media party to spend the money for a d/j. Here, though, there is (discovery, the major news value of forcing Trump to defend on the ground that there is no live dispute because he has no intention of suing), although at full retail prices for counsel. And--kids, pay attention here--when I was in the trenches two decades ago, it was thought useful in some circles to have the lower docket number and the earlier-filed dispositive motion, because by force of habit the court would have you argue first.

Posted by: Jack | Oct 15, 2016 1:38:22 AM

That's interesting. Do newspapers ever make the D/J move?

Posted by: Howard Wasserman | Oct 14, 2016 2:25:06 PM

Stylistically better than Trump's letter, in which they appear to use four or three spaces after every sentence, but still not very good. While there's a certain poetry in using Times New Roman while representing the New York Times, it isn't a great font for correspondence. Further, they appear to be using the noxious two spaces after a sentence convention. This, along with word 2003's (I believe) not-very-good layout engine produces small rivers even though the letter is not full justified.


Posted by: Anonymous | Oct 14, 2016 12:33:17 PM

Why isn't the power move here a NYT declaratory judgment action against Trump? And why hasn't anyone with a live lawsuit taken some third party discovery of Access Hollywood?

Posted by: Jack | Oct 14, 2016 11:33:50 AM

When they throw you a batting practice fastball, it's sorta wrong not to hit it out of the park.

Posted by: Joe | Oct 13, 2016 3:45:41 PM

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