Diary

Michelle Fields: Can She Win a Defamation Lawsuit?

It seems almost inevitable with a candidate like Donald Trump that the issue of defamation lawsuits would come up. So much “lying” . So many insults.

So here is a primer on defamation law by me, a lawyer who has litigated a few of these cases but is not an expert(but is a lawyer). Defamation is a claim for damages (in law we call it a tort) resulting from being lied about a public way. If someone tells a lie about you in public and you are harmed as a result of that lie, you are entitled to damages to compensate you for the damage done to your reputation, income and emotions. That’s the short summary.

Now lets get to some of the basics. A defamatory statement is a statement which is likely to harm your reputation. It may be a true statement. It may be a false statement. The meaning of defamatory is that it is harmful to your reputation. Thus, If someone were to say I had formerly been crowned as Miss America it would be an utterly false statement, but it probably would not be defamatory. If, on the other hand, I was to say that Charles Manson is a convicted murderer, it would be very harmful to his reputation, but entirely true. That is why we lawyers say that truth is a defense to a defamation lawsuit. You are entitled to say really mean nasty things about other people so long as they are true. (There is a related tort called invasion of privacy where someone discloses true but confidential facts, but that is not relevant here).

Of course, that is not an end to the discussion. Because defamation has to do with speech and expression, the First Amendment, which prohibits infringement of freedom of speech, is implicated in every single defamation lawsuit. Everytime someone is sued for saying something, the question is raised as to whether that person’s right so free speech is being infringed by having to defend a lawsuit or having to pay damages because of his exercise of his right to say what he thinks.

The United States Supreme Court has addressed this issue in several cases, including New York Times vs. Sullivan. The New York Times published an advertisement signed by three black preachers, inter alia, who were civil rights activists seeking support for the civil rights movement in the south. There were a number of facts set forth in the advertisement about what was going on in the south with regard to sit ins and arrests and stuff like that. Some of the facts in the ad were wrong. The police commissioner in Montgomery Alabama sued the New York Times for defamation based on that ad and was awarded $500,000 by an all white Alabama jury.

Even today, most people can see the potential such a judgment would have to cripple the civil rights movement and reporting on it. The case was appealed to the United States Supreme Court. That court, noting that it was ruling for the first time on the intersection of the First Amendment, which protects speech, and defamation law that protects citizens from harm from false speech ruled that where a person is a public figure, meaning a person who is widely known , he or she must prove not only that factually false and defamatory statements were made about him or her but that the person making them knew that they were false when he made them OR that he made the statements with a reckless disregard for the truth. The court reasoned that public figures have access to the media and have an easy opportunity to get out their side of the story. On the other hand fear of being sued would certainly chill the open and robust debate that a free society needs and should have about issues. An example of how this works is a case brought recently, in California case against Courtney Love was sued by by her former lawyer who claimed she was defamed when Love sent out a tweet that apparently accusing her lawyer of taking a bribe from the people on the other side of the lawsuit. No on at the trial even disputed that the lawyer had ever taken a bribe. Everyone knew at that point that the lawyer was completely innocent of the charge. But the question the jury was asked to answer was Did Courtney Love believe that the claim was true WHEN SHE MADE IT. The jury answered yes. That Love did believe the charge was true. Love won the lawsuit even though she had made a false and defamatory statement about her lawyer. As you can see, its pretty hard to win a defamation lawsuit against a public figure because the bar for the plaintiff is pretty high.

How would this apply for Michelle Fields? She would have to prove that the Donald made defamatory statements about her. Calling her delusional and a liar probably meets that standard. Then she has to prove that she was harmed by those statements. That’s probably going to be pretty easy also. She has apparently received so many threats at her home address that she has moved out of her apartment. Further, she was apparently fired from at least one job (Eric Bolling’s Cashin’ In show) and suffered opprobrium at another job. So the first two things will probably be easy enough. The next prong is the hard one– she has to prove that the Donald made those comments knowing that they were not true or with reckless disregard for the truth. That is going to be the really difficult one. Most of the case, should she choose to file it, will revolve around that issue. There would be factual questions like what investigation Trump did before issuing his statements, what evidence was available to him, what he said to his staff and others.

In the end, a jury will be asked to decide certain questions. I don’t know what the Florida jury instructions would be. In California we have standard jury instructions which are here as they might be modified to fit Michelle Fields case:

1700. Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited Public Figure)
[Michelle Fields] claims that [Donald Trump] harmed [her] by making [one or more of] the following statement(s): [that Fields had made a false accusation of battery against Cory Lewandowski, that Fields is delusional, that Fields made the story up to gain attention, that Fields has repeatedly lied about many facts to gain attention]. To establish this claim, [Fields] must prove that all of the following are more likely true than not true:
Liability
That [Donald Trump] made [one or more of] the statement(s) 
to [a person/persons] other than [Michelle Fields ];
That [these people] reasonably understood that the 
statement(s) [were] about [Michelle Fields];
[That [these people] reasonably understood the statement(s) to mean that [plaintiff is mentally deranged,lied about a physical assault, and is a habitual liar who makes up claims in order to get public attention]; and
That the statement(s) [were] false.
In addition, [MIchelle Fields] must prove by clear and convincing evidence that [Donald Trump] knew the statement(s) [were] false or had serious doubts about the truth of the statement(s).

As I said in the beginning. That last standard is a pretty difficult one to meet. I suspect that the line of attack will be that the evidence that the fact that the battery took place was so clear when Donald made some of his defamatory statements about Michelle, he had to know they were false.