Editor’s Note: Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. The opinions expressed in this commentary are his.
Story highlights
Danny Cevallos: Ultimately, for a statement to be defamatory a plaintiff must show that it was false
Donald Trump's accusers have a better case to sue than him, but they have to weigh the risks, Cevallos writes
Donald Trump stated Saturday that he plans to sue the women who have accused him of groping and other sexual misconduct.
Speaking at an event in Pennsylvania, Trump said: “Every woman lied when they came forward to hurt my campaign,” adding that “all of these liars will be sued after the election is over.”
Even before these comments, some commentators intimated that Trump’s description of a person as a “liar” or “dishonest” alone could be a defamation lawsuit.
For the female accusers, the advantage of a defamation case like this is evident from the Bill Cosby civil suits. As with Cosby, many of the alleged incidents may fall outside the statute of limitations for civil actions for the alleged assault. Too much time may have passed to sue for the original incident. But being called a liar about these accusations, well, that’s a whole new and different cause of action, and the stopwatch on that limitations period just started, on the day Trump said the words.
If the women decide to sue, a court will have to determine whether being called a “liar” in this context constitutes defamation. As with many things in the law, this is not as clear as you might think. Calling someone a liar can be defamatory … or it might not.
On one hand, the word “liar” could be a factual imputation of specific dishonesty; something that is capable of being proved false. It depends on the context of the statement. An example might be if a newspaper opinion column accused someone of committing the very specific crime of perjury, and that statement is demonstrably false.
On the other hand, sometimes calling people liars is not defamation. “Rhetorical hyperbole,” “vigorous epithets,” expressions of contempt, and figurative language, may all be constitutionally protected speech.
Courts have recognized what we now know all too well this season: politics “reeks of unfair, intemperate, scurrilous and irresponsible charges against those seeking public office” … which are nasty, childish … and protected by the First Amendment.
It seems that a flippant remark might just be an expression of contempt – which is not actually an assertion that someone is a liar, it just means you hate the person – or your opinion is that they are deplorable. With a wholly subjective comment, even the nastiest speech might just be an opinion.
If the statement is just an opinion, opinions are generally not defamation. At the same time, a speaker cannot avoid liability simply by prefacing a statement of fact with “in my opinion,” or “apparently” or “some sources say.”
Ultimately, though, for a statement to be defamatory a plaintiff must show that it was false.
And that’s the problem with the term “liar”: what does it actually mean? Courts recognize that “lying” applies to a broad spectrum of untruths: white lies, partial truths, misinterpretation, deception and just general dishonesty. We all “lie” to some degree at some point – even presidents – maybe even under oath!
When a plaintiff sues for defamation for being called a liar, it creates a kind of role reversal. In this case, the women suing Trump for calling them liars would have to prove the falsity of that accusation. Put another way, the women would have to prove that they are truth tellers: that the groping and other things really did happen.
As a defendant, Trump can use “truth” as a defense to defamation. This is confusing again, but he would have to show that it’s true … that the plaintiffs are liars.
This is more than just an academic dispute, however. There are massive practical considerations as well. Whether it’s Trump or his accusers who fire the first paper volley in court, they should consider the risks and costs, as well as the law.
Trump could be destroyed by the discovery process alone. If he’s a party to a lawsuit about the veracity of accusations of sexual misconduct, his opponents can force disclosure of information about any matter relevant to the subject matter involved. Relevant information is broadly defined: it’s not limited to evidence admissible at court. Instead, it’s anything reasonably calculated to lead to the discovery of admissible evidence.
In a case like this, it would potentially open up anything loosely connected to his past relationships or contact with women.
At the outset, it might look like the accusers stand to profit from a lawsuit. But accusers give up their privacy in high-profile cases, and that’s a bell that cannot be un-rung. Trump has a reputation for a scorched-earth litigation policy, too, which can be overwhelming for the uninitiated opponent. It’s a lot for one of these accusers to risk, especially when a court might toss this case at the outset because the comments were flippant, too vague or mere opinion.
That’s why these threats by Trump are likely bluster. It would be throwing good money after bad for him to sue, to say nothing of the potential exposure. Even if he wins, how much money do these accusers have? Probably less than Trump’s anticipated attorneys’ fees. The accusers also have to weigh the risks of a lawsuit: Is it worth all the agony of litigation if Trump isn’t liable for nasty hyperbole or harsh opinion? Either winner of a court case here might achieve only a pyrrhic, symbolic victory at best.