Days after a New York jury ordered Donald Trump to pay $83.3 million in damages to defamation plaintiff E. Jean Carroll, questions remain about whether the amount is enough to stop his lies. is a problem.
The fact that we have to ask this question tells us something important about the moment we are in. And it tells us something important about both the value and limits of defamation law.
There is plenty of doubt about what will happen next. As Carroll’s lawyers argued, Trump has boasted of wealth far exceeding this amount. He publicly resolved to repeat the falsehood “a thousand times.” In fact, even while the jury was hearing his case, he continued to amplify his false claims about Mr. Carroll on social media and during his campaign.
But this is “will he or won’t he?” The speculation is just the latest data point in a larger and more worrying trend in defamation that simply does not seem to have the deterrent effect that defamation laws are supposed to have. We have entered an era in which the incentives to lie for political and profit purposes are so strong that defamation awards and settlements may not meaningfully change behavior.
Some examples show a major break from the past. For most of the long history of libel law, a jury’s verdict that the content was false and defamatory settled the matter, and defendants faced with liability would do everything they could to avoid repeating the lie. This is because the risk of punitive damages is a powerful deterrent and is unlikely to be overcome by even stronger incentives. In short, libel laws were used to stop defamation.
However, recent lawsuits have revealed some defendants who appear to be motivated by defamation, even as assets have been depleted or otherwise inaccessible to plaintiffs. Rudy Giuliani, who reasserted his defamation claims against two Georgia pollsters outside court as a jury handed down its verdict, was ordered to pay $148 million for his lies. He filed for bankruptcy a few days later. Alex Jones did the same less than two months after a jury ordered him and his parent company, Infowars, to pay nearly $1 billion for years of lies about the Sandy Hook family. . He used the broadcast throughout the proceedings to denounce the lawsuit and solicit donations from viewers to fund the lawsuit.
In other cases, the concern is the opposite. Defendants are well-funded and have so much to gain financially from certain storylines that defamation payments are simply chalked up as a cost of doing business, making truth a meaningful motive. I don’t think it will turn out that way. Even the staggering $787 million settlement that Fox News reached with Dominion Voting Systems last year is only a fraction of Fox’s cash reserves, and viewers who want to hear conspiratorial stories aren’t. Some critics fear this was a huge blunder for the company, which may still be feeling pressure from the public. lie.
What we are witnessing for the first time is a lack of confidence that the foundations on which our defamation principles are built remain intact. Indeed, these situations, of which Carroll is the most powerful example, require that the core preconditions of defamation law be corrected, the public record corrected, and that the defamer lied. This seems to contradict the premise that it is possible to prevent This is a legal system centered on the belief that if all relevant and verifiable evidence is considered and the truth is declared, it will be welcomed and accepted by the public. It assumes that the economic consequences that juries impose for lies will subsequently move the needle. The organization believes that defamers will choose the truth over the possibility of further damages.
And now the question is whether Mr. Trump, whose other legal conflicts have led to a significant increase in campaign contributions, will be dissuaded from repeating this twice-adjudicated falsehood, or whether a calculation will tilt the incentives in his favor. The question is whether to continue. Its expanse. His first statement after Friday’s verdict broadly condemned the verdict and his political opponents but did not repeat the lies, suggesting he may be choosing his words more carefully. But he also repeated the false claims about Ms. Carroll on national television the day after a jury in an earlier case first found him responsible, and during a brief witness stand in a second case. I continued this story.
That the jury found the statement false did not affect Mr. Trump’s willingness to repeat it, and that’s how libel law should work. In this new upside-down world that libel laws were not designed to deal with, he decided that no prize beyond such a high jury award could be earned by repeating one’s claims to an audience who wanted to hear them. It is by no means certain that it will outweigh any benefits it may have. that.
And if an $83 million judgment turns out to be enough to sting the defamer, but not enough to stop him, it’s because libel law can’t pull the heavy oars we want . The harsh reality is that this doctrine not only makes assumptions about people who tell lies that damage reputations and undermine democracy. It makes assumptions about us as listeners.
Defamation law assumes that we, as citizens, respect the rule of law. By screening what can be proven to be relevant and accurate, rejecting falsehoods, and coming together to denounce and stop those who deliberately lie, the organization is committed to ensuring that defamation damages are protected by carols. The idea is that this will protect not only plaintiffs like Ms., but society as a whole. I hope that the jurors will be commended for doing this work on behalf of all of us, but I hope that the jurors will keep their participation a secret, even from their families, and will not even protect each other’s identities. do not expect to be warned. People who tell deliberate fabrications assume they will see their audience wither.
Defamation law assumes that we all want to share a single, objective reality. It fails to address the issue of supply and demand, and today one wonders whether tens of millions of dollars in punitive damages can stem the tide of lies. It assumes that we long for truth.
Ronnell Andersen Jones is a professor of law at the University of Utah and a visiting fellow at the Knight First Amendment Institute at Columbia University.
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