"Non, je ne regrette rien."
They
want us to be afraid. Don't be.
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“When bad men combine,
the good must associate; else they will fall one by one, an unpitied sacrifice
in a contemptible struggle.” — Edmund Burke
“You were given the
choice between war and dishonour. You chose dishonour, and you will have war.'
- Winston Churchill
**
Over the weekend, the folks who run ABC surrendered to
Donald Trump, because, we are told, “this problem needed to go away.”
But the “problem” won’t go away. In fact, they just
made it far worse.
ABC Grovels
Bill Kristol calls the gobsmacking decision by ABC to settle Trump’s
libel suit, apologize, and pay him $15 million, the “Most Alarming Development Yet.”
And he’s right.
“This was a true fire
bell in the Trumpist night,” Bill writes, “an awful herald of so much that may
lie ahead…”
The network’s capitulation — in a lawsuit that it was almost certain to win — was bad enough. But, as Bill notes, “the precedent this sets, the
floodgates it opens for many other such suits, the signal of open capitulation,
are all terrible.”
What other corporate
counsels are going to advise their clients to fight such lawsuits if mighty
Disney won’t? What other corporations—media or otherwise—are going to resist
bullying by the Trump administration? What outlets, in the future, will walk on
eggshells? Will they even avoid telling the truth in hopes of avoiding
litigation?
**
Trump sued ABC alleging that the network and anchor
George Stephanopoulos had defamed Trump when he said a jury had decided that
Trump "raped" E. Jean Carroll. But the jury had not done so; it found
Trump liable for “sexual abuse,” but not “rape.” Stephanopoulos was, in fact,
technically wrong.
But in libel law, being wrong is not enough for a plaintiff to win a
defamation suit, especially one involving a public figure. To win, a public
figure like Trump has to show that the statement was made knowing that it was false; in reckless disregard of the truth; acting with actual malice. That has been the standard since the Supreme Court’s landmark
case, Times v. Sullivan.
So, let’s review the facts here.
Because the voters of this country chose to return
Trump to power, we now find ourselves in a debate about the differences between
sexual abuse and rape — a distinction that turns on the distinctions between
“digital penetration” of a woman’s vagina and penile penetration.
I apologize for the creepiness, but the public record
is what it is.
Last year, after the verdicts against Trump came down — finding him
liable for assaulting Carroll and defaming her on multiple occasions — Judge
Lewis A. Kaplan issued a lengthy written statement clarifying what the jury had
found. The Washington
Post reported: “Judge clarifies: Yes, Trump was found to have raped E. Jean
Carroll.”
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Judge Kaplan’s full opinion is worth your time to read in its
entirety (and printout and share).
“The finding that Ms. Carroll failed to prove that she
was ‘raped’ within the meaning of the New York Penal Law does not mean that she
failed to prove that Mr. Trump ‘raped’ her as many people commonly understand
the word ‘rape,’ ” Kaplan wrote.
He added: “Indeed, as the evidence at trial recounted
below makes clear, the jury found that Mr. Trump in fact did exactly that.”
Kaplan said New York’s
legal definition of “rape” is “far narrower” than the word is understood in
“common modern parlance.”
As Judge Kaplan explained, New York’s law requires forcible, unconsented
penetration with the attacker’s penis.
The jury found that Trump had used his finger, which judge Kaplan explained “meets a more common definition of rape.”
He cited definitions offered by the American Psychological Association
and the Justice Department, which in 2012 expanded its definition of rape to
include penetration “with any body part or object.”…
“The jury’s finding of
sexual abuse therefore necessarily implies that it found that Mr. Trump
forcibly penetrated her vagina,” Kaplan wrote, calling it the “only remaining
conclusion.”
But apparently, none now dare call it “rape.”
**
So, ABC had more than a solid case. Most legal experts
— especially those versed in libel law and First Amendment jurisprudence —
thought that Trump’s lawsuit against ABC was of a piece with his other
borderline frivolous attempts to intimidate the media.
Thus, the shock when ABC and its parent company
abruptly folded, not only handing Trump a major victory, but emboldening both
the president-elect and his vindictive MAGA allies to launch further attacks on
the press and his critics.
As Oliver Darcy noted: “Lawyers from all
political persuasions were astonished by the settlement. ‘The ABC News settlement makes zero sense from a legal standpoint,’
George Conway wrote on Bluesky. Marc Elias said it amounted to ‘another legacy news
outlet choosing obedience.’”
The surrender also marked a stark reversal for the network. Darcy noted
that, “Stephanopoulos had previously defended himself against Trump’s
defamation claims, saying in May that he wouldn’t be ‘cowed out of doing’ his
job ‘because of a threat.’ His bosses at ABC News and Disney apparently did not share that spirit.”
**
There is, of course an extremely good reason why— until now — the media has resisted surrendering to bullies like Trump. “Major news organizations have often been very leery of
settlements in defamation suits brought by public officials and public figures,
both because they fear the dangerous pattern of doing so and because they have
the full weight of the First Amendment on their side,” RonNell Andersen Jones,
a professor of law at the University of Utah, told the NYT.
“What we might be seeing
here is an attitudinal shift,” she added. “Compared to the mainstream American
press of a decade ago, today’s press is far less financially robust, far more
politically threatened, and exponentially less confident that a given jury will
value press freedom, rather than embrace a vilification of it.”
**
By bowing the knee, ABC hoped that it had saved itself from troubling
litigation. But, as Kristol notes, they have actually opened the floodgates.
Lawyers for Trump and his appointees — including Kash Patel and Peter Hegseth —
are threatening to file defamation suits against other journalists and critics.
And the MAGA claque — including the thoroughly hackified Hugh Hewitt —
are urging Trump to also file even more lawsuits against media outlets.
Those cases remain longshots. But the point is not
necessarily to win them.
The point is the fear.
The point is to make
journalists and critics afraid of Trump’s retribution.
The point is to make
them wonder if they are next.
The point is to make the
price of truth simply too high.
The point is to saddle
them with fat legal fees.
The point is to make
them lie awake at night.
The point is to make
critics, and reporters, and editors wonder if it is all worth it; to wonder why
they should stand and fight, if the billionaires and the corporations who run
major media outlets run and hide.
The point is to have
their spouses turn to them and say, ‘We could lose it all.”
“It’s a concerted
strategy,” writes lawyer Harry Litman, “and it is
working.”
Trump already has
shifted the balance of power between the media and the presidency before even
taking office. This is a significant
and deeply troubling development, especially as Trump continues to erode other
democratic norms that make it all the more important that the media perform its
traditional function of reporting the facts and pushing back against abuses of
power.
