Lawyer letters, those nifty demands and threats written on official letterhead that strike fear in the hearts of some and laughter in others, have never been a favorite of mine. Not only are they generally leaden prose, but they serve no purpose beyond chest-thumping. You want to sue? So sue.
But when Donald Trump had his lawyer send the New York Times a lawyer letter to demand a retraction of their story about the women who claim Trump sexually assaulted them, it served two purposes. The first was to attempt to blunt the impact of the story, particularly since Trump denied during the second debate that he ever actually engaged in sexual assault.
Suing wasn’t the point, as it would never get anywhere in time to have an impact on the election. A lawyer letter, which was obviously going to go viral, was the only mechanism available to get his contention out there. This was a political pitch, not a legal one.
And the Times, in return, had its assistant general counsel send a letter back. Its first salvo was a smack across the ego. If Trump wanted to use his letter to defend his honor, the Times was going to make him pay for it:
You ask that we “remove it from [our] website, and issue a full and immediate retraction and apology.” We decline to do so.
The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a “piece of ass.” Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. 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.
But like Trump’s lawyer letter, this was political posturing.
But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance – indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the women’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices.
This is what a free press in a free society is supposed to do. There is no spin, no passionate beliefs for Trump, that in any way negates the Times’ right to publish these women’s accounts. Hell, they didn’t even have to “diligently” work to confirm the accounts. Absent any reason to believe they were false,* they were constitutionally entitled to publish them without fear of reprisal.
The New York Times has, unsurprisingly, taken to its editorial page to make its case, proving yet again the foolishness of going after someone who buys ink by the barrel.
The Times was well within its rights to publish the story, Mr. McCraw added, because Mr. Trump is a public figure and the issue is one of national importance. And contrary to Mr. Trump’s claims, The Times’s reporters worked to confirm the women’s accounts and printed his denial of the accusations.
While true, the Times appears almost defensive about doing what the press exists to do. It raises the seminal Supreme Court decision of New York Times v. Sullivan, which might have clued Trump in to the fact that the Times has been threatened before and didn’t back down. But that would only matter if the point of Trump’s lawyer letter was legal rather than political.
In its editorial, the Times quotes Justice William Brennan’s words, bolder than what the Times raised in its own defense.
In his opinion for the court, Justice William Brennan Jr. wrote that “public discussion is a political duty, and that this should be a fundamental principle of the American government.” Such discussion “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
See how tepid the Times’ “well within its rights” appears in contrast?
But there are two other issues raised by this dance of the lawyer letters. On the one side, it demonstrates that Trump has chosen the course that reflects his ignorance of, or lack of concern for, the Constitution. This was one dumbass move, given that it’s so flagrantly ignorant of the First Amendment. Kinda makes you wonder what his lawyer, Marc Kasowitz, was thinking before putting his name to it. He was probably thinking green.
However, the Times has a flank exposed, as it’s only liable for falsity plus malice. Given the ten million editorials it’s published about how much it hates Trump, his ancestors and his progeny, its gross excesses give rise to a potential finding that the Times’ attitude toward Trump is malicious. It hates Trump. It really, really hates Trump.
Many applauded the dance of the lawyer letters, regardless of which side they supported. Fans always root for their team. McCraw’s letter for the Times definitely won the dance off, but it was still pretty stiff and official. Maybe that’s what Times readers like?
As for me, I’ve responded to more than a few lawyer letters in my day, including some threatening me for defamation for what I’ve written at SJ. My response has always been short and sweet: Bite me. It lacks the wit shown by Cleveland Browns general counsel James Bailey, but it does the job.
*Much has been made in the past day about the fact that the women have waited for years, decades, to come forward with their stories. Some argue this proves they’re liars who hate Trump, while others argue this is an indicium of sexual assault “survivors,” essentially proof that they must have been victimized because they failed to tell anybody.
Both arguments are nonsense. Failing to come forward timely in no way “proves” the allegations false. At the same time, it’s hardly a virtue and certainly weakens the allegations.