A week after Donald Trump’s US$10-billion defamation suit against The Wall Street Journal was dismissed by a federal judge, his former aide Kash Patel, now director of the FBI, launched one of his own, on April 20, against The Atlantic magazine. Mr. Patel is seeking damages of US$250-million.
If you’re thinking those sums are absurd, you’re absolutely right. But in high-profile cases such as these, involving public figures who are suing for huge amounts of money, the plaintiff’s chance of winning, and the media organization’s ability to pay, are beside the point.
“The numbers are clearly inflated,” said Howard Winkler, a Canadian lawyer specializing in defamation and media law, in an e-mail to The Globe and Mail.
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“The protection of reputation is very much about public theatre, not so much about the law,” said Mr. Winkler, who has worked with publishers and broadcasters since 1988. “The claims are intended to say to the world ‘what was said is false and I am putting my money where my mouth is by suing.’ … Threatening or starting a lawsuit is just one way of attempting to mitigate the impact of reporting.”
And, he added, the likelihood of going to trial shrinks as time goes on: “The impact of the reporting passes and a trial would only serve to remind the public about what was said.”
One of the largest Canadian media defamation awards was given not to a household name, or even a high-rolling corporate leader; it was given to an Ottawa research doctor who, in 1996, modestly asked for an apology and $10,000 after, he alleged, his views were damagingly misrepresented by the CBC investigative program The Fifth Estate. In April, 2000, the Ontario Superior Court found in favour of the plaintiff, and ordered the public broadcaster to pay $950,000 plus the plaintiff’s legal costs.
Mr. Trump’s asks have never been modest – and this goes back to his first defamation suit, in the mid-1980s, against the Chicago Tribune and its architecture critic, Paul Gapp. Mr. Trump sought US$500-million in damages after the paper published a column by Mr. Gapp that said of Mr. Trump’s proposed real estate development: “The world’s tallest tower would be one of the silliest things anyone could inflict on New York or any other city” (among other piquant phrases). The case was dismissed.
“Since then, Trump has filed more than a dozen lawsuits over news stories he didn’t like. None has ever succeeded in court,” Vanity Fair reported last week.
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As for Mr. Patel’s defamation suit against The Atlantic, the article said: “Patel’s lawsuit doesn’t seem to have inspired much fear or loathing among Washington journalists mainly because Trump has made suing news organizations – and losing – so routine. ‘I’ve heard nothing about any chilling effect or anything like that,’ said one print reporter about his newsroom’s reaction to the suit. ‘Seems more like a “bring it on, bruh” kind of vibe.’”
In Ontario, anti-SLAPP laws are designed to allow courts to quickly dismiss defamation suits intended to muzzle media reporting or other criticism – also called libel chill. (SLAPP stands for Strategic Lawsuits Against Public Participation.)
“In my many years of representing the media in Canada, I have never experienced a media outlet that has caved to a threat by a subject whether they be a public figure or not, and whether wealthy or not,” Mr. Winkler said.
It’s rare that any political defamation suit makes it to trial in this country, he said, noting the exception of Kent v. Postmedia. A broadcast journalist who gained attention for his coverage of the 1990-91 Persian Gulf War, Arthur Kent made an unsuccessful run for provincial office in Alberta that was reported, unflatteringly, by journalist Don Martin in 2008. Mr. Kent sued for $1.2-million, and was ultimately awarded a total of $650,000, including compensation for legal costs. The article was ruled to have been defamatory.
Let’s say Kash Patel’s suit against The Atlantic does go to court. As Vanity Fair pointed out, the bar for proving defamation for a “public official like Patel” is very high.
Mr. Winkler explained: “In the U.S., for a public figure to win a defamation case, he or she must prove actual malice on the part of the defendant. This generally means that the defendant knew the statement was false or acted with reckless disregard for the truth.”
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While this requirement has historically been “a substantial hurdle,” he said, “in recent years, the courts in the U.S. have been more willing to find actual malice.”
On our side of the border, the law differs. “In Canada, there is a presumption that the words complained of are false and the burden of proof is on the defendant to demonstrate one or more defences to the claim. In the U.S., no such reverse onus exists, and it is for the plaintiff to prove that the words were false.”
Back in the United States, though Mr. Trump has not seen any of his defamation suits win in court, some have succeeded in different ways. For example, Mr. Trump sued for defamation after ABC News anchor George Stephanopoulos misstated the verdict of the E. Jean Carroll civil case, saying incorrectly that the jury had found Mr. Trump “liable for rape.” In response, ABC News agreed to pay US$15-million (as a donation to the presidential library) plus US$1-million in expenses.
“What amazes me is the extent to which in the U.S. major media outlets have caved to political pressure and legal action and paid significant amounts to settle defamation claims,” Mr. Winkler said. “The integrity of the free press is in my view under attack in the U.S., with of course some notable exceptions.”