Like most observers, I figured that ABC News’ decision to settle a libel suit with Donald Trump for a total of $16 million had more to do with the network’s desire to make a public relations problem disappear than it did with any chance that the network would actually lose the case.
After all, when anchor George Stephanopoulos said on the air that Trump had been found “liable for rape” in a lawsuit brought by the writer E. Jean Carroll, he was merely quoting a federal judge, who said a civil-court jury had indeed found that Trump “raped her” [Carroll] using the everyday meaning of the word rather than the strict legal definition.
But CNN media reporter Brian Stelter raises another intriguing possibility: that ABC’s lawyers wanted to avoid pre-trial discovery. As Stelter reports, ABC didn’t even wait for the judge to rule on whether to grant summary judgment in the case — a routine proceeding in which the defendant asks the judge to find that the plaintiff’s case is so lacking in substance that it ought to be immediately dismissed. Stelter quotes Ken Turkel, a trial lawyer who is representing Sarah Palin in her revived libel case against The New York Times:
“In my experience, when media defendants are unsuccessful at the dismissal stage,” which was in July, “they focus on preparing for summary judgment to challenge the legal sufficiency of a plaintiff’s claim,” he said. “It begs the question as to why ABC settled before the summary judgment stage.”
Turkel also said “you would have to consider” whether the discovery process unearthed emails or other internal ABC data that damaged the network’s case.
Stelter also observes that right-wing media figure Erick Erickson, who’s a lawyer, wrote on Twitter: “No, a $15 million settlement is not the cost of doing business. It is avoiding discovery.”
This makes a great deal of sense. Based on what Stephanopoulos said on the air, his comments were clearly not delivered with actual malice (that is, they were not knowingly false nor reckless), and they were arguably not even false given the judge’s comments. The judge, Lewis Kaplan, went so far as to say that the verdict “establishes against him [Trump] the substantial truth of Ms. Carroll’s ‘rape’ accusations.”
But pre-trial discovery may have revealed internal animus toward Trump from Stephanopoulos and/or others, which Trump’s lawyers might have been able to conflate into actual malice. Combined with Stephanopoulos’ failure to describe the verdict against Trump with 100% precision, ABC’s lawyers may have genuinely feared that Trump had a case he could win in front of sympathetic jury that loathes the media.
Did Stephanopoulos libel Trump? Based on facts that are on the record, the answer is “no.” And I still wish ABC had fought back. But the settlement may have been for a more complicated reason than ABC’s and parent company Disney’s desire to toady to the once and future president.
Discover more from Media Nation
Subscribe to get the latest posts sent to your email.
Your analysis is excellent. But if I were Trump I would file my own civil countersuit. TEN bucks says somewhere in the morass George emailed something along the lines of – Yah, sure, technically it’s not RAPE or anything but you have to use a word the (benighted) public will understand….or statements that you have to allege a simple crime so the Kristian Knuckle Draggers will be turned off.
I truly do not understand left wing media. Walter Cronkite has been dead a long time and they do not have a claim to fairness or accuracy any more. As a Republican in Massachusetts who was terminated from media by a progressive publisher I want to say to left wing media – you have to be purer than snow and clearer than crystal. There is no – you know what I meant! – any more. You’ll get used to the new parameters and in a way it will just make you better journalists.