This post has been updated.
The New York Times has a message for Donald Trump: Bring it on.
After the Republican presidential nominee threatened to sue over sexual assault allegations made against him in an article published Wednesday night, the Times responded Thursday with a letter daring Trump to go through with a lawsuit.
"We did what the law allows," an attorney for the Times wrote. "We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight."
Suing the Times could be risky for Trump.
"It would be very appropriate and relevant for the reporters to question Trump on the truth of the allegation under oath, and a court would likely order depositions," said John L. Diamond, a media law expert at the University of California. "There is no Fifth Amendment protection for civil cases."
Through an attorney, Trump accused the Times of libel and demanded a retraction shortly after the story was posted online; his campaign issued a statement, saying "this entire article is fiction." Even before the story was published, Trump told a Times reporter that he would sue if the newspaper went through with its plan to print the claims of two women, Jessica Leeds and Rachel Crooks.
The Times said it will not retract the story.
Winning a libel case is inherently difficult for a public figure such as Trump. The Legal Information Institute at Cornell University Law School provides a helpful explanation of the hurdles Trump would have to clear:
To win a defamation case, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.
Since the U.S. Supreme Court's 1964 decision in New York Times v. Sullivan, defamation claims have been limited by First Amendment concerns. Thus, for instance, public officials and public figures (people who are famous) must show that statements were made with actual malice to recover in an action for defamation. Actual malice means that a statement was made with knowledge that it was false or with reckless disregard of whether or not it was false. In addition, a plaintiff must show actual malice by "clear and convincing" evidence rather than the usual burden of proof in a civil case, preponderance of the evidence.
Let's just start with No. 1. Trump would have to convince a court that he did not grope Leeds and Crooks — an effort which, according to Diamond, would likely require Trump's sworn testimony. In that scenario, the real estate mogul would have to submit to questioning by New York Times lawyers. If he were to deny allegations that could be proven true, he would open himself up to a criminal perjury charge.
Even if Trump could show that the claims of Leeds and Crooks were untrue, that alone would not be enough to win a libel case against the Times. The "actual malice" standard established by the U.S. Supreme Court means Trump would further have to demonstrate "that the defendants knew the report was false or acted with reckless disregard for the truth," Diamond said."Given the malice requirement, the case would be easily dismissible, based on the fact of a credible interview," he added.
In other words, the Times could move successfully to have the case dismissed without litigating the truth of the women's claims by simply showing that the claims were credible.
In a twist, however, Diamond suggested that "reporters might defer the motion," intentionally allowing the case to proceed so that Trump would have to testify.