A threatened lawsuit by Donald Trump against the New York Times for its article about two women who said he subjected them to unwanted sexual advances would face almost insurmountable odds and very likely fail, legal experts say.
The Times reported late Wednesday that two women, Jessica Leeds and Rachel Crooks, said Trump had inappropriately touched them in separate incidents in the early 1980s and in 2005.
The women said they came forward after Trump said during Sunday's presidential debate that he had merely engaged in "locker-room talk" on a leaked "Access Hollywood" recording from 2005. Although on the tape he talks about kissing and grabbing women with impunity, Trump denied he had ever physically assaulted women.
At a rally Thursday, Trump again denied the women's claims, which he said were "preposterous, ludicrous and defy logic." He also denounced another Times story, published in May, in which several women recounted "unwelcome advances" by Trump in the past. The two stories, he said, "will be part of the lawsuit we are preparing against them."
As a practical matter, Trump’s chances of prevailing in such a suit are low. As a public figure, he would have to satisfy two principles embedded in libel law: Did the Times publish its stories knowing the women’s statements were false, and were they published with “actual malice” — with reckless disregard of whether they were true or false?
The standard comes from a landmark Supreme Court ruling in 1964 involving the New York Times. The ruling in that case, New York Times v. Sullivan, made it difficult for public figures to win libel cases because it requires them to prove the defendant's prior knowledge and intentions. The court's intent was to give the news media wide latitude in reporting on politicians and other public figures.
"Actual malice is a very high bar, and I can't imagine that Trump could possibly clear it," said Samantha Barbas, a professor at the University at Buffalo's law school who specializes in the First Amendment. "He would have to show that the Times didn't research or check their facts at all, or actually knew the story was false and published it anyway."
In fact, the paper made extensive efforts to corroborate the allegations, talking to multiple sources and providing Trump himself a chance to respond.
Barbas said she doesn’t think Trump will follow through in suing the Times; such an action would open him up to discovery by the newspaper, potentially forcing him to disclose past compromising behavior.
Rather, she said, “this does seem to be about intimidating women who might come forth with their experiences — also, of course, about intimidating the press.”
In a response to Trump's attorney on Thursday, New York Times attorney David E. McCraw said the paper wouldn't remove, retract or apologize for Wednesday's article, as Trump's camp had demanded. Noting Trump's own claims about his mistreatment of women, including barging in on semi-naked contestants in Trump-owned beauty pageants, McCraw wrote, "Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself."
Sonja R. West, a First Amendment expert and law professor at the University of Georgia, said Trump would have "a problem" proving he was defamed even if he could show the Times stories were false, because he'd have to prove that the stories harmed his reputation. "Considering all the other shocking news about him lately, much of it about his treatment of women, it's hard to imagine that the Times story significantly changed very many people's opinion of him," West said.
Trump has sued for libel before; in 2006, he went to court against former New York Times journalist Timothy O'Brien, claiming that O'Brien's book "Trump Nation" had damaged his reputation by lowballing Trump's net worth. Trump lost the case; his appeal was dismissed.
Trump has frequently demonized press coverage of him and his campaign, and at one point he vowed to "open up" the libel laws to make it easier for public figures to sue journalists.
But Ronald K.L. Collins, a law professor at the University of Washington, was dismissive of Trump's vow, which would require action by Congress and a likely review by the Supreme Court. "We don't have a king," Collins said.