Trump v. New York Times: A Settlement in the Offing?

You may or may not know that Donald Trump’s lawyers sent a letter to the NYTimes requesting them to issue an “immediate retraction and apology” for the article Two Women Say Donald Trump Touched Them Inappropriately.  The Times’ response, from its lawyer David E. McCraw, is here.  In closing the letter states:

If [Mr. Trump] 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 dare criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.

Presuming that litigation results, is this one of the 2% of cases that should go to trial?  Or, would it be best for the case to settle?  What criteria should we use to make that determination?


hat tip – Prawfsblog

7 thoughts on “Trump v. New York Times: A Settlement in the Offing?”

  1. An interesting aspect of the NYT letter is the legal argument that Mr. Trump was not damaged by their article because he had already damaged his reputation himself.

    Update: A piece in the ABA Journal cites legal experts as challenging the legal merit of Mr. Trump’s claim, quoting one saying that he is “pretty much libel-proof.”

  2. A settlement agreed to by the New York Times with Trump will be an admission that the information published was inaccurate and that Trump is right in his charges against the paper and journalists across the country. This would shake my confidence in the long-held respect and integrity for a half century. Do not let him bully a giant in the world of speaking truth to its readers, consistent with the responsibility of a free press. Many already doubt the press and such action could end all trust in the media still held by the populace.

  3. The newspaper’s letter has already said, clearly and well, all that is needed. Mr. Trump would not be able to show damage to his reputation or to meet the requirements of “actual malice.” The Times checked its information. Then it published a story on a matter of public importance, giving voice to the experiences of women with no speaking platforms of their own and offering Mr. Trump a chance to respond. The newspaper has done exactly what the First Amendment protects–and should continue to protect.

  4. Clearly, by publishing the response letter, the Times wants this threatened lawsuit to be as public as possible. It’s great press and will play well with the readership (full disclosure: I am a subscriber).

    This is exactly the sort of sexy litigation work that white shoe firms in NYC will be jumping to take on, should the Times’ GC decide to retain outside counsel for this.

    What I wonder is whether NY has an anti-SLAPP statute that could come into play here.

  5. One of the considerations of having a case go to litigation is that there is a possibility of a court ordered remedy, where one party has wronged the other. This case should not go to litigation and waste the court’s resources. Mr. Lande mentioned in his comment above, Mr. Trump is “pretty much libel-proof,” since he has damaged is own reputation. In this situation, there are too many intervening factors that contributed to Mr. Trump’s damaged reputation that it would be difficult for a court to determine the extent the NY Times article has damaged Mr. Trump’s reputation.

  6. As has been mentioned already what appears to be the biggest motivation for threatening a lawsuit is posturing with the public by both sides. Obviously, with Donald Trump running for president his campaign cannot afford to not respond at all when the press-report accusations against him. It is likely that some voters will not fully be educated on how exactly the legal process works and the strategy of threatening a lawsuit doesn’t necessarily mean that Trump thinks he would prevail in court, instead it is a way to save face in the court of public opinion, right before voters will be going to the polls to vote, along with his denial of the accusations. It is worth noting that Trump has since came out and said he will sue all of his accusers after the election.

    Likewise, the NYTimes obviously has great motivation to publicize being threatened with a lawsuit as well. It is well reported that Trump has been accused of inappropriate behavior, and the NYTimes is simply reporting that news. As has also been noted above and in the Times response, Mr. Trump would not be able to show the requirements to be successful in court.

    As such, I would be surprised if this case ever reached litigation unless it was simply for the Trump campaign to posture with American public opinion as the election nears. Seeing as any litigation would last well beyond Election Day, it seems at that point their would be some sort of settlement, with very little acknowledgement of wrongdoing by the NYTimes and even less publicity of the settlement by Donald Trump.

  7. I agree with previous comments that the public may view a settlement by The New York Times as an admission that the article had incorrect information. There seems to be the perspective that settlement indicates admission of guilt. This is a common presumption that needs to be corrected. Settlement allows for cost effective, timely resolution and allows for resolutions that may not be granted by a court. As stated in other comments, Donald Trump would not be able to draw a line of which reputation destruction was caused by the article and what destruction he caused on his own. Therefore, I believe that this case should be settled due to its ambiguous nature. A victory in court would not satisfy either party; it is unlikely that The New York Times would lose readers nor would Donald Trump’s reputation improve. However, a settlement may be reached to satisfy both parties.

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