ABC Had Good Legal Reasons to Settle with Trump

https://www.politico.com/news/magazine/2024/12/21/abc-news-settlement-
trump-media-threats-00195761

Donald Trump’s antagonism toward the media takes many forms, but until 
recently, his efforts to use the courts to go after the press had largely 
been viewed as a costly nuisance — expressions of his unhappiness over 
negative coverage rather than serious legal threats.

That changed recently when ABC News announced that it had agreed to pay 
$16 million to settle a defamation case brought by Trump. The president-
elect said that there would be more lawsuits to come and then quickly 
followed through on that promise with a lawsuit against the Des Moines 
Register and longtime pollster Ann Selzer over a preelection poll that 
showed Vice President Kamala Harris leading in Iowa, a state that Trump 
handily won.

These back-to-back developments prompted considerable hand-wringing among 
media commentators and lawyers, many of whom argued that ABC had caved to 
Trump on a winnable case, perhaps to curry favor with the incoming 
president. The lawsuit against the Des Moines Register was seen as 
evidence of an emboldened Trump who might finally have turned a corner in 
his yearslong efforts to bring the media to heel through the courts. There 
were dramatic and sweeping takes that denounced the “Orbanization of our 
politics,” “anticipatory obedience” and so on.

These takes are premature. Trump might well erode America’s free press 
over the next four years, but the ABC case is not evidence of that. The 
decision to settle appears quite reasonable; more on that in a moment. 
It’s also good to note that Trump’s settlement in the ABC case has no 
serious bearing on his odds of success — which are very low — in the case 
against the Des Moines Register and Selzer. Perhaps most importantly, the 
episode with ABC offers a useful reminder for media outlets of how to act 
in the age of Trump 2.0.

The settlement with ABC concerned a segment in March in which George 
Stephanopoulos repeatedly said that Trump had been found liable for rape 
in a sexual assault case brought by E. Jean Carroll. Stephanopoulos’ 
statements were false. The very first question that the jury was asked on 
its verdict sheet was whether Carroll had proved by a preponderance of 
evidence that Trump had “raped” her — and their answer was “no.”

The jury instead found that Trump had engaged in “sexual abuse,” 
apparently concluding that Trump had violated Carroll in ways not defined 
as rape at the time under New York state law. Trump owes Carroll nearly 
$100 million after two different jury verdicts concluded that Trump had 
falsely denied the encounter and defamed Carroll in the process.

As a legal matter, could ABC have won the case? Yes, though there was 
hardly a guarantee. The network pointed to the somewhat convoluted 
procedural history of the cases involving Carroll, including when the 
presiding judge said that, despite the definition under New York law, 
Carroll had proven that “Mr. Trump ‘raped’ her as many people commonly 
understand the word ‘rape.’” But those comments were not binding for the 
Florida judge overseeing the ABC case, and they would not have been 
binding for a Florida jury.

And while it is true that the standard under defamation is an imposing one 
— a plaintiff who is a public figure must establish that the defendant 
acted with “actual malice” — that standard can be satisfied with either 
knowing or reckless disregard of the statement’s falsity. And if, say, 
producers had warned Stephanopoulos not to use the word “rape,” but he did 
so anyway, that would be potent evidence of actual malice.

As an editorial matter, the segment was poorly done because Stephanopoulos 
repeatedly said something that was plainly inaccurate. I was surprised 
when I watched it at the time, and I have been curious ever since about 
why ABC did not simply and quickly issue a clarification or correction.

A variety of other routine legal considerations also reportedly informed 
the company’s decision to settle with Trump. According to The New York 
Times, ABC was concerned that a jury in Florida might side with Trump and 
award him even more money — and, in the worst-case scenario, that the case 
could be used by Republican appointees on the Supreme Court to erode legal 
protections for the press as a whole.

Discovery in the case, in which both sides exchange evidence in their 
possession with the other side, was also nearly completed, and it is very 
possible that internal communications within ABC about the segment could 
have proved deeply embarrassing for the network and further harmed both 
its case and its public reputation more broadly. (The discovery process 
was brutal for Fox News during its case with Dominion Voting Systems for 
broadcasting Trump’s post-2020 election lies. ABC’s payout, notably, is a 
small fraction of the nearly $800 million that Fox News paid in its 
settlement.)

In corporate litigation, these are all perfectly normal reasons to settle 
a case. Most civil cases, in fact, settle. Trump just happens to distort 
our perception of this because he brings an unusually large number of 
frivolous cases that get tossed out of court.

The lawsuit against the Des Moines Register and Selzer could turn out to 
be another of those cases.

In that case, Trump alleges that the newspaper and pollster intentionally 
released a fake poll to influence the outcome of the election. “In truth,” 
Trump claims, the poll “was just a piece of political theater concocted by 
an individual — Selzer — who, as a supposedly legendary pollster with the 
power to shape public perception of elections, should have known better 
than to poison the electorate with a poll that was nothing more than a 
work of fantasy.”

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There are several obvious problems with this theory. The lawsuit provides 
no specific allegations that, even if true, would establish that the poll 
was “concocted.” It is highly unlikely that a single poll would swing a 
statewide or national election. And last but not least, it is hard to 
understand why a newspaper and veteran pollster would risk considerable 
harm to their reputations in this way.

The case will proceed to some sort of resolution, but in the meantime, it 
might be helpful to take a step back and to consider some lessons from the 
ABC settlement.

Those lessons concern some of the most basic tenets of journalism: Be 
careful and be precise. Distinguish facts from opinion. If you make a 
mistake, fix it. And don’t be afraid to admit that you screwed up. A quick 
on-air clarification from Stephanopoulos would have put ABC on much firmer 
legal ground.

Of course, one big reason that the settlement is so grating to people is 
that Trump — one of the most powerful people in the world — routinely 
breaks all of these rules himself. Barack Obama might have been able to 
file a sizable defamation suit against Trump for his years of lies 
claiming that Obama was a foreigner. But Trump seems to delight in 
headlines that suggest he is on the attack and a dominant figure even if 
he later comes out the loser.

Another reason is that many of those celebrating the settlement on the 
right are the same people who claim that free speech is under attack in 
this country and that we all need to grow up — to be more resilient in the 
face of public attention and scrutiny, to take everything a little less 
seriously. It’s hard to square that notion with Trump’s endless parade of 
lawsuits against the media — which, until the ABC settlement, had mostly 
failed.

Much of our media discourse concerning public officials is governed by 
conventions of discipline and restraint. Most politicians who had been 
found liable for sexual abuse would probably not want to draw attention to 
coverage of that very unseemly fact, even if there had been a mistake in 
the reporting. And most people who work in and around political media 
understand that the modern media ecosystem is a vast and messy place, and 
that we should not necessarily police every infraction by resorting to 
litigation.

The American media produces terrific journalism day in and day out on a 
wide array of subjects. But some journalists surely produce work that is 
infected by ideology, greed, proximity to political power or some 
combination thereof. And sometimes journalists just make innocent 
missteps.

From the outside looking in, it can be hard to tell the difference in any 
given situation, but generally speaking, the country is better off if 
public officials and public figures exercise self-restraint.

We would not like a world in which every mistake in the media is met with 
a lawsuit. Americans, by and large, value the First Amendment and a 
culture of free expression, and some of the legal weapons that Trump is 
deploying can easily be pointed in different directions — against 
conservative news outlets, against conservative political figures and, as 
Carroll demonstrated, even against Trump himself.

Those celebrating the ABC settlement on the right would do well to 
remember the old adage: Be careful what you wish for.


-- 
November 5, 2024 - Congratulations President Donald Trump.  We look 
forward to America being great again.

The disease known as Kamala Harris has been effectively treated and 
eradicated.

We live in a time where intelligent people are being silenced so that 
stupid people won't be offended.

Durham Report: The FBI has an integrity problem.  It has none.

Thank you for cleaning up the disaster of the 2008-2017 Obama / Biden 
fiasco, President Trump.  

Under Barack Obama's leadership, the United States of America became the 
The World According To Garp.  Obama sold out heterosexuals for Hollywood 
queer liberal democrat donors.