Given the controversial redefinitions of rape raised here over the past decade, the use of the word by George Stephanopoulos didn’t come anywhere near the fringes. Not that Trump cared.
Mr. Trump sued ABC and Mr. Stephanopoulos in March, after the anchor asked Representative Nancy Mace, Republican of South Carolina, who has spoken publicly about being raped as a teenager, why she had continued to support Mr. Trump after he was found “liable for rape” in a 2023 civil case in Manhattan.
In that case, a federal jury found Mr. Trump liable for sexually abusing and defaming the writer E. Jean Carroll, but it did not find him liable for rape. Still, the judge who oversaw the proceeding later clarified that because of New York’s narrow legal definition of rape, the jury’s verdict did not mean that Ms. Carroll had “failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape.’”
In his lawsuit, Mr. Trump accused Mr. Stephanopoulos of harming his reputation by saying multiple times on-air that he had been found liable for raping Ms. Carroll.
Trump prevailed on the 12(b)(6) motion to dismiss the defamation suit with Southern District of Florida Chief Judge Cecilia Altonaga. The rational was . . . curious, give the latitude afforded the “substantial truth” defense.
Here, of course, New York has opted to separate out a crime of rape; and Stephanopoulos’s statements dealt not with the public’s usage of that term, but the jury’s consideration of it during a formal legal proceeding. Thus, while Defendants’ cited cases are compelling, they are not directly responsive to the issue of whether it is substantially true to say a jury (or juries) found Plaintiff liable for rape by a jury despite the jury’s verdict expressly finding he was not liable for rape under New York Penal Law.
To the contrary, one of Defendants’ cited cases suggests Florida courts do not consider legal definitions to be mere formalities in this context. See Clark (determining that use of the term “rape” to describe an arrest for sexual battery “in the absence of formal legal charges is [ ] not defamatory”). The Court thus cannot definitively say it was substantially true to report on the (single) jury’s verdict in Carroll II—which did not find Plaintiff liable for rape as that term is defined under New York law—as finding Plaintiff liable for rape.
On a motion to dismiss the court is required to accept the pleadings as true, which might explain the court’s “definitively say it was substantially true” language as a concession to the defense’s burden. But then, it’s not as if Southern District of New York Judge Lewis Kaplan hadn’t already cleared up the issue sufficiently to overcome any contention against substantial truth.
Certainly, Defendants’ theory has one credible supporter: Judge Kaplan, who repeatedly determined that the jury’s verdict—regardless of its finding that no rape as defined by New York’s Penal Law had occurred—amounted to a finding of liability for rape as rape is commonly understood. As explained, however, Judge Kaplan’s findings do not have preclusive effect here. The Court is thus only persuaded that substantial truth would arise if the jury’s verdict of “No” was presented in combination with Judge Kaplan’s additional findings.
Preclusive effect? No, but that’s hardly the issue. Right or wrong, when a judge holds that the conduct as found by a jury constitutes “rape” as that word is colloquially understood, that is more than sufficient to justify its use in reporting.
Defamation suits by public figures are extremely difficult to win given the actual malice burden of New York Times v. Sullivan, and a federal judge’s holding almost certainly made the burden insurmountable. So why did ABC settle? It’s been suggested that this was merely a financial decision, but a $15 million dollar payout to Trump’s future “presidential library plus a mil in legal fees isn’t exactly nuisance value.
It’s also been suggested that this was ABC paying a bribe to Trump, a payout that ABC made to avoid being on Trump’s enemies list and suffer the retribution of a president’s fragile ego. Did ABC try to buy its way into Trump’s good, or at least not bad, graces?
*Tuesday Talk rules apply.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I think the suggestion that ABC settled to avoid discovery is much more plausible.
Given the amount, it was probably on advice of counsel. We, of course, don’t get to see the discovery cards, and it may well be that plaintiff’s counsel got hold of some damning emails or memos showing that Stephanopoulos hated Trump and deliberately used language he knew to be legally erroneous. Or, perhaps just internal communications showing the network itself was embarked on a partisan mission to tank Trump’s electoral chances.
16MM is pretty cheap when the judge has telegraphed the end result of the suit. Telling a party they can’t rely on the judge’s statements when reporting or commenting on a case in front of that judge is a hell of a harbinger for decisions to come.
As for it being a hope for better treatment, i highly doubt that ABC giving money towards the Mar-a-Lago bathroom, ballroom, and pool-flooding-storage rooms updates will sway Darth Cheeto from his previous statements about them being the Enemy of the People.
I’m just a dumb old cop, but given that past revelations about newsroom shenanigans lead one to believe that the average news network is as horny as a boatload of Marines and that fifteen million is a couple of weeks pay for one of the “on screen talent”, I’m leaning toward the no-way-are-we-going-into-discovery theory.
I agree with the notion that discovery would be a factor in the decision.
I also don’t put much stock in the “rape as colloquially understood”. How many times have we read here about things getting called rape that bore little similarly to the actual definition. I thought Lewis Carol’s humpty dumpty was a warning, others seem to have taken it as a recommendation…
The “uncertainty of litigation” against a sitting president by the time anything happens with the case, coupled with certainty mega attorney’s fees, presumably was enough for the insurance company to look for a quick settlement.
My best guess is that ABC saw the writing on the wall: Judge Altonaga all but telegraphed that this case would ultimately survive a MSJ and see a trial. ABC wanted no part of the spectacle of a trial, and certainly wanted no chance of a Florida jury, sympathetic to Trump and susceptible to Trump’s “I didn’t literally ‘rape’ her” argument, rendering a nuclear verdict. The impetus for settlement wasn’t the legal exposure or the direct monetary exposure, but the PR exposure.
OR maybe it was a free press protective decision. You know, don’t let the case work its way to SCOTUS which might do what Thomas & maybe some others want and gut NY Times v. Sullivan.
Stephanopoulos is a Clinton acolyte masquerading as a journalist. So there is likely a lot of discovery that ABC would not like to make public when they have to disclose his emails and text messages that could damage ABC’s street cred as objective journalists as well as its defense.
Given the denial of 12(b)(6), the likely cost of protracted litigation with appeals possibly to SCOTUS could be a factor inducing ABC to settle.
It is also a wise move to avoid an appeal that would lead SCOTUS to revisit Times v. Sullivan.
Finally, a network news organization being sued by the president in his personal capacity raises unprecedented conflicts issues that could affect ABC’s competitive position. What if Trump singles out ABC and denies them access given other reporters? Does the lawsuit create a conflict that would prevent Trump or possibly people close to him from sitting for interviews with reporters employed by a news network in litigation with him?
So ABC has a lot of good reasons to pay to end this lawsuit quickly.