Donald Trump’s antagonism toward the media takes many forms, but until recently his attempts to use the courts to go after the press have largely been seen as a costly burden — expressions of his dissatisfaction with negative reporting rather than serious legal threats.
That changed recently when ABC News announced it had agreed to pay $16 million to settle a defamation lawsuit brought by Trump. The president-elect said more lawsuits would follow and quickly made good on that promise with a lawsuit against the president. Des Moines Register and longtime pollster Ann Selzer on a pre-election poll that showed Vice President Kamala Harris leading in Iowa, a state Trump won handily.
These cascading developments led to much hand-wringing among media commentators and advocates, many of whom argued that ABC had caved to Trump in a winning case, perhaps to curry favor with the new president. The lawsuit against the Des Moines Register was seen as evidence of an emboldened Trump who may have finally turned a corner in his years-long effort to control the media through the courts. There were dramatic and sweeping recordings that denounced the “organization of our politics,” “anticipatory obedience,” and so on.
These recordings are premature. Trump might erode America’s free press over the next four years, but the ABC case is no proof of that. The decision to settle seems very reasonable; more about that later. It is also worth noting that Trump’s settlement in the ABC case has no serious impact on his chances of success – which are very low – in the case against the ABC case. Des Moines Register and Selzer. Perhaps most importantly, the ABC episode provides the media with a useful reminder of how to act in the age of Trump 2.0.
The settlement with ABC involved a March segment in which George Stephanopoulos repeatedly said Trump had been found liable for rape in a sexual assault case brought by E. Jean Carroll. Stephanopoulos’ statements were false. The very first question the jury was asked on the verdict sheet was whether Carroll had proven by a preponderance of the evidence that Trump “raped” her — and their answer was “no.”
The jury instead found that Trump was guilty of “sexual abuse,” apparently concluding that Trump had violated Carroll in ways that were not defined as rape under New York state law at the time. Trump owes Carroll nearly $100 million after two different jury verdicts concluded that Trump falsely denied the meeting and discredited Carroll in the process.
Legally could ABC have won the case? Yes, although there was hardly any guarantee. The network pointed out the somewhat convoluted procedural history of the cases involving Carroll, including when the president said that, despite the definition under New York law, Carroll had proven that “Mr. Trump ‘raped’ her, as many people commonly understand the word ‘rape.’ But those comments were not binding on the Florida judge overseeing the ABC case, nor would they have been binding on a Florida jury.
And while it’s true that the standard for defamation is onerous—a plaintiff who is a public figure must show that the defendant acted with “actual malice”—that standard can be met by knowing or recklessly ignoring the falsity of the statement. And if, for example, producers had warned Stephanopoulos not to use the word “rape” but he did so anyway, that would be powerful evidence of actual malice.
Editorially, the segment was poorly done because Stephanopoulos repeatedly said something that was blatantly inaccurate. I was puzzled when I looked at it at the time, and have been curious ever since as to why ABC didn’t simply and quickly issue a clarification or correction.
A number of other routine legal considerations also reportedly contributed to the company’s decision to settle with Trump. According to The New York TimesABC was concerned that a jury in Florida would side with Trump and award him even more money — and, in the worst-case scenario, that the case could be used by Republican appointees on the Supreme Court to undermine legal protections for the press to run. a whole.
Discovery in the case, in which both sides exchange evidence in their possession with the other side, was also nearing completion, and it is entirely possible that internal communications within ABC about the segment could have been highly embarrassing for the network and both its had further harmed partners. case and its public reputation more broadly. (The discovery process was brutal for Fox News during its case with Dominion Voting Systems for broadcasting Trump’s post-2020 election lies. Notably, ABC’s payout is a small fraction of the nearly $800 million Fox News paid in the settlement. )
In corporate litigation, these are all completely normal reasons for settling a case. Most civil cases are actually settled. Trump happens to distort our perception of this because he brings an unusually high number of frivolous cases that are dismissed out of court.
The lawsuit against the Des Moines Register and Selzer may turn out to be one of those cases.
In that case, Trump claims that the newspaper and the pollster deliberately released a fake poll to influence the outcome of the election. “In reality,” Trump claims, the poll was “just a piece of political theater concocted by an individual – Selzer – who, as a supposedly legendary pollster with the power to shape public perception of elections, should have known better than poison the elections. electorate with a poll that was nothing more than a work of fantasy.”
There are several obvious problems with this theory. The lawsuit makes no specific allegations that, even if true, would show the poll was “fabricated.” It is highly unlikely that a single poll would lead to a national or state election. And last but not least, it is difficult to understand why a newspaper and experienced pollster would risk significantly damaging their reputation in this way.
The case will lead to some sort of resolution, but in the meantime, it may be helpful to take a step back and consider some of the lessons from the ABC settlement.
These lessons cover some of the most fundamental principles of journalism: be careful and be accurate. Distinguish between facts and opinions. If you make a mistake, fix it. And don’t be afraid to admit when you messed up. A quick clarification from Stephanopoulos would have put ABC on a much firmer legal footing.
Of course, one of the main reasons the arrangement is so annoying to people is that Trump – one of the most powerful people in the world – routinely breaks all these rules himself. Barack Obama could potentially have filed a significant defamation lawsuit against Trump for his years of lies claiming Obama was a foreigner. But Trump seems to relish headlines that suggest he is on the attack and a dominant figure, even if he later emerges as the loser.
Another reason is that many of those celebrating the settlement on the right are the same people who argue that free speech is under attack in this country and that we all need to grow up – to be more resilient in the face of public attention and criticism. to take everything a little less seriously. It’s hard to square that idea with Trump’s endless series of lawsuits against the media — which had largely failed until the ABC settlement.
Much of our media discourse about government officials is governed by conventions of discipline and restraint. Most politicians who have been found liable for sexual abuse would probably not want to draw attention to the reporting of this very inappropriate fact, even if there were an error in the reporting. And most people who work in and around political media understand that the modern media ecosystem is a vast and messy place, and that we shouldn’t necessarily police every transgression through lawsuits.
The American media produces great journalism day in and day out on a wide range of topics. But some journalists undoubtedly produce work tainted by ideology, greed, proximity to political power, or some combination thereof. And sometimes journalists just make innocent missteps.
From the outside, it may be difficult to tell the difference in a given situation, but overall the country is better off when officials and public figures exercise restraint.
We would not want a world in which every mistake in the media is met with a lawsuit. Americans generally value the First Amendment and a culture of free speech, and some of the legal weapons Trump deploys can easily be aimed in several directions — against conservative news media, against conservative political figures and, as Carroll showed, even against Trump himself .
Those on the right celebrating the ABC settlement would do well to remember the old adage: be careful what you wish for.
