RonNell Andersen Jones and Dahlia Lithwick write:
[N]o one should lose sight of the fact that Carroll’s win actually represents a staggering turning point: Even under the most free-speech-protective standard imaginable, Trump is accountable for his lies about her.
At its core, and understandably, the two-week Carroll trial homed in on the dominant harm Trump inflicted on the former columnist—a traumatizing and life-altering sexual attack in a dressing room of a department store near Trump Tower. (Disclosure: One of us knows E. Jean Carroll professionally and is friends with her attorney in this case.) Yet while the country’s attention has focused primarily on the testimony designed to show that Trump has a pattern of sexually abusing women, Carroll’s attorneys were also carefully demonstrating to the jury that Trump has a longstanding pattern of lying.
This is because, separate and apart from the remedy for the sexual abuse in a department store changing room, in this litigation Carroll also sought a remedy for injury done to her reputation by an ugly falsehood. When she initially came forward with her story, Trump publicly castigated Carroll as a fraud, calling her story a “con job” and a “hoax.” (The social media post that the jury found defamatory yesterday was actually the second attack on Carroll’s character for which she sued him. The first is still pending in the courts because it happened while Trump was president, and he’s argued that he was acting in his official capacity when responding to her accusation.) Even if there had been no trial for sexual abuse, Carroll had a right under the law to try to hold Trump accountable for the assault on her good name and the damage done by his lie.
The standard In these cases is notoriously difficult for plaintiffs. The law essentially forgives many, if not most, falsehoods about public figures in the interest of preserving space for vibrant dialogue on matters of public concern. Critics of important or newsworthy people have a broad constitutional right to be wrong. The First Amendment rule, famously set forth in New York Times v. Sullivan, provides that plaintiffs like Carroll can prevail only when they prove a shockingly brazen state of mind on the part of their defamer: not just that the statement was false, and not just that this falsehood was reputation-damaging, but also that the speaker subjectively knew that the statement was false and deliberately or recklessly said it anyway. This thick layer of free-speech protection, unique to American jurisprudence, is known as the “actual malice” rule. The high standard is one that Trump himself has argued should be diluted so that people like him might more easily weaponize defamation law to silence their own critics with threatened libel suits. Justices Clarence Thomas and Neil Gorsuch have likewise argued that the Supreme Court should reconsider the Sullivan rule, insisting that “knowing falsity or reckless disregard for the truth” is so strict a standard that it can essentially never be met, and thus permits people to lie with impunity about public figures.
One of the most astonishing and underappreciated aspects of the E. Jean Carroll suit? That Carroll—and Trump—have proven them all wrong. [Continue reading…]