Sure, an award of $83.3 million, or $148 million, or even more than a billion, is a lot of money, assuming it’s payable and paid. So why then are defamers unrepentant to the point of walking out of court and repeating the very defamatory statements that just cost them bigly? Why do the verdicts not “correct the public record” but rather give rise to yet further debate and accusation about the truthiness of the statements? Why is there no social disgrace to being held a lying liar telling lies?
Several examples show a stark break from the past. For most of the long history of libel law, a jury determination that material was false and defamatory settled the question, and defendants facing that liability would take every possible step not to repeat the lie — both because it would be socially reprehensible to do so and because the risk of punitive damages was a powerful deterrent unlikely to be overcome by any stronger incentive. In short, libel law used to stop the libel.
It’s hard to win a defamation case, especially when the defamed is a public figure and the burden is to prove “actual malice,” which actually isn’t malice at all. A great deal of latitude is, and should be, given to opinion and substantial truth in order to protect the right to free speech from the threat of litigation and judgment. Any award, no less an award in the millions, doesn’t come easy. So why doesn’t it seem to matter when the jury issues a decisive spanking?
What we are seeing, for the first time, is a lack of surety that the foundations upon which our libel doctrine is built remain intact. Indeed, these situations — of which the Carroll verdict is our most powerful example — seem to fly in the face of the core assumptions of defamation law: that it can remedy reputational harm, correct the public record and deter defamers from telling lies. It is a body of law centered on the belief that when all relevant and provable evidence is considered and truth is declared, it will be welcomed and accepted by the population. It assumes that the financial consequences that juries impose for lies will then move the needle. It thinks defamers will choose the truth over the prospect of further damages.
Indeed, this might be said of criminal law as well, as convictions are rejected as political or wrongful, without regard to the evidence and the service of a jury to deliberate and reach a verdict. But I digress.
Libel law imagines that we, as a people, respect the rule of law. It envisions that libel damages will protect not only plaintiffs like Ms. Carroll but all of society as we sort through what is relevant and provably accurate, band together to reject falsehoods and denounce and deter those who knowingly lie. It expects that jurors doing this work on behalf of all of us will be celebrated, not that they will have to be warned to keep their participation secret from even their families and their identities shielded even from one another. It assumes that those who have told deliberate fabrications will see their audience dry up.
Whether defamation verdicts are seen as a cost of doing business or a tool to fundraise against the injustice being held accountable, what they are no longer considered is a basis for establishing truth and falsity, and a basis for establishing who is the liar and who is not. While a civil award may (or may not) provide compensation for the harms done, to the extent reputational harm can be remedied anymore, the verdicts are no longer universally accepted as the machinery by which society distinguishes truth teller from defamer.
As for the punitive awards, whose purpose is to deter both the defamer from defaming some more and other defamers from defaming in the first place, the numbers are huge and still not big enough to seem to make a dent, either in what’s left of the mind of the defamer or in the public at large.
Libel law assumes that we wish to share a single, objective reality. It cannot tackle the supply-and-demand problem that today leaves us wondering if tens of millions of dollars in punitive damages will stanch the flow of a lie. It presupposes that we crave truth.
All law makes that assumption, which is why we regurgitate trite phrases like “the jury has spoken” and expect the rest of the public, who weren’t in the courtroom and know nothing more about a case than what their preferred information source chooses to tell them, to accept the finding of the jury as conclusive.
There are plenty of rationalizations why this is not so, but they were there before trust in the system spiraled into the toilet, and they didn’t hinge on whether the jury gave us the outcome we wanted rather than the decision dictated by the evidence. But if the machinery of libel law, of any law, no longer works, then we’re back to the alternatives available before the legal system saved us from trial by combat. Do we really want to go back?
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I guess my non-lawyer confusion sticks on this:
Trump is appealing the original verdict that determined that he assaulted her. I believe his basis for that is that he didn’t do it – I’m sure there’s a lot more lawyering in other areas on that – but his essential position is that he didn’t do it.
Doesn’t he kind of HAVE to continue saying he didn’t do it, or at least not accept the defamation verdict at face value. Admitting the defamation trial was correct and paying damages is admitting the original trial is correct.
And certainly as a candidate for office he can’t admit that he assaulted someone (at least not specifically – as the “grab them” comment kinda implied he does this).
Obviously he doesn’t have to do all of this so Trumpingly…
He could say nothing. He could say he disagrees with the verdict and will appeal. He could say the jury was wrong. He could say he feels that he was treated unfairly. What he cannot say is that he never met her and she’s a liar.
As for the rest of us, he had a trial. He could have testified. He chose not to do so and the jury reached a verdict. That’s how trials work.
Thanks for putting that so succinctly.
Law is a system made up of networks of humans in an institutional structure.
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Humans are fallible therefore law sometimes gets it wrong.
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If we accept the law as necessary we have to accept a certain error rate but in a much as we know the error rate we will think that it is too high. Therefore any system of laws is to some extent evil however we have to accept it as a necessary evil.
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However not everyone has full protection of the law and full protection from the law. Three things matter:-
1/ The user’s perceived level of social respectability;
2/ The user’s position in the nation’s privilege hierarchy;
3/ The depth of the user’s pockets.
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Someone who does not satisfy the above three conditions cannot use any system of law effectively.
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Effective use of the law requires skilled lawyers but not all lawyers are skilled and no lawyer (or other professional) will develop the necessary skills without going through a period of practice with lesser skills and skilled lawyers are more expensive. Trial by law where one party has a better lawyer than the other is no advance on trial by combat where one party is a better duellist than the other.
Trial by jury assumes the jurors are impartial peers.
I am aware of 7 medical malpractice cases and 4 child abuse cases where race was the sole consideration of minority jurors as determined by post trial interviews in cases I consider had grossly incorrect decisions.
Unpunished perpetrators of beating children to death and professionals acting correctly being punished for unavoidable bad outcomes were the results.
I am an advocate of punitive damages going to the state since they were never meant to be the lottery ticket they have become (and also setting fee schedules for attorneys *ducks*).
Juries needing to carry more weight suggests the selection method needs to change. I would suggest a trial topic competency test to qualify and enhanced bias screening, but that is just me.
And yes time, costs, and process seem prohibitive, but the question was if we wanted trial by combat instead.
I would argue, that if the outcome of a trial has nothing to do things in a defendants control (like meeting standards of care) and is instead entirely dependent on things outside a defendants control (racial mix of county a patient dies in), that defendant has no choice but to prefer trial by combat (nonlethal in this discussion).
What is it that compels non-lawyers to believe they have mysterious insight into jury selection that lawyers, the people who actually select juries and try cases, do not? You understand nothing about jury selection, yet feel your delusions are worth mentioning. They’re not. You have no clue what you’re talking about and should keep your ignorance to yourself and avoid procreation.
Non-lawyer here…
I think the issue with this case is it feels a bit cheap — for lack of a better term — to hinge a defamation case on what is at its core a denial of a heinous crime. E. Jean Carroll accused Trump on national television of raping her in the mid-90s. Horrific, if true, but a civil suit, a defamation case, is not the correct modality for sorting out this kind of claim in my opinion and I would argue in the opinion of many irrespective of how one feels about Trump. The more civil and criminal cases seem to be about social or poetic justice — bad men getting their comeuppance, men with big mouths and deep pockets getting hit where it hurts — the less faith many people have in the righteousness of the law.
Also, there’s the unsettling defamation per se aspect of these claims. True or not, E. Jean Carroll never went to the police, never filed a report, and never sued Trump for allegedly assaulting her. I’m aware Trump could have chosen to sue her if he wanted, and he definitely has the means to do so. But legally, I’m not sure the courts should’ve even entertained a lawsuit alleging she suffered over being “defamed” due to an allegation she neither chose to commemorate nor chose to pursue as a criminal matter.