Et Tu, ABC?

The Dangerous Implications of the Sweetheart Settlement

In an interview last May about Donald Trump’s defamation lawsuit—which ABC settled on very favorable terms to Trump over the weekend—Stephanopoulos said, “Unfortunately, it now comes with the territory. But I’m not going to be cowed out of doing my job because of the threat of Donald Trump.”

That’s mildly encouraging to hear, and I believe him. But it is an empty assurance if Stephanopoulos’s bosses at ABC are cowed by the threat.

And it is even less comforting if reporters who don’t have Stephanopoulos’s prestige and means (that is, 99% of working reporters) and media companies that don’t have ABC's resources(that is, 99% of media companies) opt to blink in response to Trump’s intimidation.

That outcome seems likely in the wake of a settlement that gave Trump a high-profile win in a very losable case. I think it’s pretty clear that ABC—or more precisely, its parent company Disney—wouldn’t have agreed to the sweetheart deal if it were another plaintiff or if Trump weren’t on the verge of assuming the presidency.

Worse, the settlement doesn’t stand in isolation. It reflects a broader trend among major outlets, such as The Washington Post and LA Times, whose owners recently interfered with their editorial boards’ planned endorsements of Kamala Harris.

In fact, the New York Times reported over the weekend that lawyers for Trump as well as Pete Hegseth and Kash Patel have threatened journalists with defamation lawsuits in just the past several weeks. It’s a concerted strategy, and it it working.

Trump already has shifted the balance of power between the media and the presidency before even taking office. This is a significant and deeply troubling development, especially as Trump continues to erode other democratic norms that make it all the more important that the media perform its traditional function of reporting the facts and pushing back against abuses of power.

Understanding Trump’s Defamation Case Against ABC

To fully grasp ABC’s capitulation, it’s important to understand the details of Trump’s defamation claim as well as the E. Jean Carroll case to which it referred. This is going to be a long Substack entry, but it’s necessary to explain why the settlement was a departure from normal practice and a surprise gift to Trump. Moreover, I don’t believe any of the existing coverageof the settlement has laid out the essential details.

Trump’s lawsuit alleged Stephanopoulos defamed him in an interview with South Carolina Representative Nancy Maceon This Week on March 10, 2024. Mace, a Trump supporter, is a rape survivor who in recent years has spoken publicly about her experience to garner support for various proposals to augment survivors’ rights and combat violence against women.

The alleged defamation occurred as Stephanopoulos asked Mace how she could support Trump in light of the Carroll verdict. Here are his precise words:
"Donald Trump has been found liable for defaming the victim of that rape by a jury. It's been affirmed by a judge."

Mace took umbrage at the question, accusing Stephanopoulos of shaming her as a rape victim. She also insisted repeatedly that Trump was “not found guilty in a criminal court of law.” The interview grew fairly contentious, and in the 10-minute fracas, Stephanopoulos repeated several times the original claim that a jury had found Trump guilty of rape (at one point he said two juries had done so).

As Mace continued to push back forcefully, Stephanopoulos asked the producers to display a Washington Post headline from July 2023. The headline read: “Judge clarifies: Yes, Trump was found to have raped E. Jean Carroll.” Referring to it, Stephanopoulos said, “In fact, it has been shown to be rape. The judge affirmed that it was, in fact, rape. Donald Trump was found to have committed rape. That’s just a fact.”

Nine days later, Trump sued ABC for defamation.

For Trump, it was a standard move from a longstanding playbook. Throughout his career, he has threatened media with defamation lawsuits, often folding before filing. When he does follow through, his record in those cases is spotty at best. His overall strategy seems at times more to deter future negative coverage, with the lawsuits being absorbed as cost of doing business.

To prove ABC defamed him, Trump—because he is a prototypical “public figure”—needed to establish that Stephanopoulos:

1. made a demonstrably false statement of fact,

2. knew that the statement was false or had reckless disregard for its falsity, and

3. thereby damaged Trump’s reputation.

This formulation comes from the Supreme Court’s landmark opinion in the 1964 case of New York Times Co. v. Sullivan. The case involved an ad that criticized the police force in Montgomery, Alabama for its treatment of civil rights protesters. The ad contained a few factual inaccuracies, such as misstating the number of times Martin Luther King Jr. had been arrested. The police commissioner sued the Times for libel and won based on Alabama law that was satisfied by a showing of falsity.

The Supreme Court unanimously reversed. It held that a public official alleging libel had to prove what has come to be known as actual malice or constitutional malice. The First Amendment precluded a libel claim by a public official based on mere falsity; rather, the plaintiff needed to show a media defendant knew the statement was false or at least recklessly disregarded its falsity.

Justice Brennan justified the actual malice standard as critical to safeguarding freedom of the press and preventing self-censorship based on fear of legal repercussions for criticizing public officials. As Justice Brennan wrote, “Erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the 'breathing space' that they need to survive.” The Court further explained that the standard was critical for ensuring accountability for government officials.

NY Times v. Sullivan immediately gained canonical status and the actual malice standard has been widely accepted as a cornerstone of constitutional law. (Recently, Justices Clarence Thomas and Neil Gorsuch criticized the decision’s underpinnings, which provoked the equivalent of gasps among court watchers.)

So, had the case gone to trial, the jury’s focus would have been on whether Stephanopoulos’s statement— “Donald Trump has been found liable for defaming the victim of that rape by a jury. It’s been affirmed by a judge”—was false and, if so, whether Stephanopoulos knew it or was recklessly indifferent to its falsity.

To really bear down on that question, we need to revisit the Trump-Carroll defamation litigation. Stay with me, reader!

Carroll II and the jury’s verdict

Carroll first sued Trump for defamation for a series of commentshe made in 2019, when he was President, denying that he had sexually assaulted her in the 1990s in a Bergdorf Goodman dressing room. Trump’s defense was—and has remained to the present, notwithstanding the verdicts of two civil juries—that Carroll made up the episode out of whole cloth as a hoax to increase sales of her then-forthcoming book. He averred that he had never met her and, besides, “she’s not my type.”

That case got caught up in a torturous series of pre-trial procedural maneuvers focusing on whether Trump had acted in his official capacity. If he had, the Department of Justice would have taken over the claim, which would have been dismissed because the United States has not waived sovereign immunity for intentional torts like defamation. (The courts eventually held that Trump could be sued.)

But while that was happening, Trump defamed Carroll again in 2022 when he was no longer president. (Even after the verdict, he again repeated the same defamatory comments, remarking in a May 2023 town hall that the allegations were a “made-up story” and that Carroll was a “wack job.”) Carroll then brought a second defamation suit. She also added a claim for battery under the recently passed New York Adult Survivors Act, which permitted victims a one-year “lookback window” for filing assault claims that were barred by the statute of limitations. It was this second defamation lawsuit—which wound up going to trial before the first—that was the basis for Trump’s defamation claim against ABC.

Carroll’s testimony was that Trump first abused her by digital penetration and then proceeded to rape her. She presented corroborating testimony from friends to whom she had told a consistent story shortly after the event.

The jury at was required to fill a special verdict form for the battery claim. The form set out three alternative theories of battery, any one of which satisfied the legal requirements. The first was rape. The judge instructed the jury according to the definition in the New York criminal code, which requires sexual intercourse. The next alternative theory was sexual abuse, meaning sexual contact but not intercourse.

A generally overlooked point that matters for current purposes is that any of the three theories equally supported the battery charge. The jury had to agree on just one of them.

In the event, the jury marked "no" to the first question—whether Carroll had proved by a preponderance of the evidence that Trump had raped her—and "yes" to the question of whether she had proved sexual abuse. They awarded Carroll $5 million, including $2 million for the battery. Deliberations lasted only three hours.

I march through the icky details because it’s an overreading of the record to suggest that the jury found that Trump didn’t rape Carroll. Rather, it is equally or more likely that there wasn’t a consensus and, rather than resolve it, they just went ahead to the second theory, which equally satisfied the battery verdict.

Judge Kaplan’s conclusion that the jury did find rape

It’s also critical in evaluating the defamation settlement to parse the rulings of Judge Lewis Kaplan. Trump brought a motion to modify the judgment in the case. He specifically pointed to the jury’s “no” answer to argue that the jury’s award for the battery was excessive. Judge Kaplan rejected the argument in terms that bear heavily on Stephanopoulos’s potential liability for defamation. That passage of Kaplan’s opinion is worth setting out at some length (with footnotes indicated but without the text of them):

“The only point on which Ms. Carroll did not prevail was whether she had proved that Mr. Trump had ‘raped’ her within the narrow, technical meaning of a particular section of the New York Penal Law—a section that provides that the label ‘rape,’ as used in criminal prosecutions in New York, applies only to vaginal penetration by a penis. …The definition of rape in the New York Penal Law is far narrower than the meaning of ‘rape’ in common modern parlance, its definition in some dictionaries, in some federal and state criminal statutes, and elsewhere. The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape.’ Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that. . . .

Trump now contends that the jury's $2 million compensatory damages award for Ms. Carroll's sexual assault claim was excessive because the jury concluded that he had not ‘raped’ Ms. Carroll…. His argument is entirely unpersuasive. Instead, the proof convincingly established, and the jury implicitly found, that Mr. Trump deliberately and forcibly penetrated Ms. Carroll's vagina with his fingers, causing immediate pain and long-lasting emotional and psychological harm.

Trump's argument therefore ignores the bulk of the evidence at trial, misinterprets the jury's verdict, and mistakenly focuses on the New York Penal Law definition of ‘rape’ to the exclusion of the meaning of that word as it often is used in everyday life and of the evidence of what actually occurred between Ms. Carroll and Mr. Trump.”

Kaplan’s analysis is to my mind strained, if not tendentious. But it nevertheless is a game-changer for the ABC defamation case. Under Kaplan’s reasoning, Stephanopoulos’s statement—supported by a Washington Post headline—was accurate in common parlance, and as a factual account of what the jury found.

The case that Stephanopoulos and ABC would make to a jury is that it was literally true to say, “Trump has been found liable for defaming the victim of that rape by a jury. It’s been affirmed by a judge.” That statement, which was the initial assertion from which the others emerged, most sensibly relies on Kaplan’s judgment that the jury found Trump guilty of rape in the more common usage of that term. The Washington Post headline—“Judge clarifies: Yes, Trump was found to have raped E. Jean Carroll”—straightforwardly affirmed that interpretation.

An extra cushion of protection from liability is that Stephanopoulos manifestly believed the statement was true, which is why he cited the headline. Trump’s argument would need to be that Stephanopoulos’s subjective impression was reckless. But it’s a hard sell to a jury, I think, to say that taking the word of the judge on the case is reckless.

Finally, there’s the question of whether the whole brouhaha matters at all because there’s no damage to Trump’s reputation, which is a necessary element of a defamation claim. Trumpalready has been publicly accused of sexual misconduct by 26 women, spanning incidents dating back 50 years. He has denied them all, and the public seems to have largely given him a pass. Conversely, members of the public have long since taken him to be an incorrigible sexual offender. It’s hard to see why the Stephanopoulos interview would damage his reputation among either cohort.

The decision permitting the case to go to trial by Judge Cecilia Altonaga of the Southern District of Florida recognized and basically endorsed the argument that Stephanopoulos’s statements were not actionably false. To analyze the motion, the court had to determine whether Stephanopoulos’s statements were “substantially true.” The court was notably ambivalent. It found that Stephanopoulos’s statements were susceptible to a non-defamatory interpretation. And the court added, “[d]efendant’s theory has one credible supporter: Judge Kaplan, who repeatedly determined that the jury’s verdict… amounted to a finding of liability for rape as rape is commonly understood.”

Since Stephanopoulos’s statement relied expressly on the judge’s finding, that conclusion could have been enough to grant the motion. But the judge ultimately decided that there was an issue of fact that a jury needed to resolve, namely whether Stephanopoulos was relying on Kaplan’s statements or whether he was relying on—and misconstruing—the definition of rape under New York criminal law.

There is one more material fact that possibly bore on the settlement. A magistrate handling discovery had ordered both Trump and Stephanopoulos to sit for four-hour depositions in the coming days. That’s always an attractive opportunity for lawyers in cases involving Trump, who is erratic, lacks self-control, and is always at risk of committing perjury. On the other hand, it’s also true that Stephanopoulos’s deposition could have been damaging for ABC’s case, as Trump’s lawyers could have asked him 25 versions of the question: “Isn’t there a difference between rape and sexual assault?”

The general chilling effect of ABC’s settlement

All these details demonstrate that Trump was by no means on a glide path to victory when ABC settled. And given the traditionally vigorous litigation of defamation claims by the large media companies, the expectation was that ABC would have fought hard and to the end. Indeed, if this case had been brought a few years ago, or if it were brought today by a prominent public official other than Trump, it is very likely that ABC would not have agreed to the settlement.

I talked to several high-powered defamation defense lawyersabout this point. They all affirmed that under the longstanding practice in the NY Times v. Sullivan era, it would have been near inconceivable for ABC to settle but for the prospect of Trump’s return to power. A prominent news organization would sooner have switched to all-cartoon programming than agree to a settlement on such favorable terms.

That is the chilling bottom line. It means that Trump has new wind in his sails for his continuing threats to make trouble for media that criticize him. He has threatened not just defamation claims (which he has continued to file, including a $10 billion case against CBS for a supposedly too-cozy interview with Vice President Harris). He also suggests that major networks—whom he refers to as “the enemy of the people” and “fake news”—such as ABC should lose their broadcast licenses and that journalists should be imprisoned if they refuse to name confidential sources.

The settlement comes on the verge of his return to the White House and coincides with a series of startling aggrandizements of his own power. All in all, it clearly strengthens Trump’s hand in bringing the media to heel and deterring negative but truthful reporting about him.

Trump's attacks on the press fit comfortably within his broader authoritarian ambitions. They also resonate uncomfortably with the history in other countries where democracy has degraded. A recent study about civil defamation and media freedom in Hungary under the rule of Viktor Orbán found that journalists are under assault in the wake of changes to civil defamation law, which removed the requirement of actual damages. The study positions the assault on the media within the country’s general backslide in protections for freedom of expression under Orbán. (I am grateful to Princeton professor and my former colleague Kim Lane Scheppele for the exposition of this point.)

One might think that the most mainstream media companies would be the least likely to kowtow to Trump’s threats. But here, I think there is a very unfortunate throughline between ABC’s buckling and the conduct of other media behemoths like The Washington Post and The LA Times, both of whose owners scuttled expected endorsements of Kamala Harris. (I explained my resignation from The LA Times in response to that action and related cozying up to Trump in an earlier posting in this Substack: Why I Just Resigned from the Los Angeles Times.)

The substantial holdings of the corporate parents of these companies dwarf the worth of the media holdings themselves. The Walt Disney Company, which owns ABC, is a huge consortium of subsidiaries worth over $200 billion. (ABC News alone, by contrast, is valued at between $3 and $5 billion.) The same is true for Jeff Bezos, who owns The Washington Post, and Dr. Patrick Soon-Shiong, who owns The LA Times. Both are multi-billionaires for whom the newspapers are something between a résumé polisher and a loss leader.

It is these decision-makers at the ownership level who are particularly subject to Trump’s browbeating and blandishments. It is certain that the decision to settle the defamation case was made at the very top, inside the boardroom of The Walt Disney Company, and therefore attended to the broader concerns of that conglomerate.

And it can be argued—and I’m sure it will—that the settlement was a reasonable business move for ABC and Disney. The $15 million in damages is essentially pocket change, and the statement of regret was sufficiently lawyered and muddled to be not too damning. But the whole package of money, legal fees, and a somewhat muddled statement of regret clearly amounts to a solid win for Trump. And that’s how it’s being portrayed in all the news reports.

I can see why that outcome could serve the narrow interests of Disney shareholders when balanced against 1) the possibility of a huge verdict by jurors in Trump-country Southern Florida and 2) Trump’s threats and well-known propensity to go after media companies that he thinks have been tough on him.

But that defense only restates the problem. Perhaps it is sensible, five weeks before inauguration, to placate Trump and adjust corporate conduct to the new order. But that’s only because of Trump’s grab of outsize power and his demolition of crucial guardrails of democracy. It was sensible to refrain from criticizing the U.S. government during World War I when the Sedition Act was in place and being enforced. That’s just another way of saying that we were living under wartime standards of constitutional compromise that today are universally condemned.

It’s also true that if ABC News or The Washington Post or LA Times are more gun-shy about defending defamation claims, it figures to affect the motivations and calculations of the hundreds of media companies, from established but financially vulnerable magazines to ragtag YouTube channels. Thus, Trump’s settlement has likely succeeded in recalibrating the President’s relationship to the media it way that increases the probability that members of the Fourth Estate will stay their hands rather than risk a defamation suit for reporting important, truthful material that provokes the ire of the maximum leader.

Likewise, if the most prominent and previously self-respecting outlets perceive a need to tack toward Trump to “balance” their coverage, as is the case with my old paper, the risk is acute that it could temper the boldness of the rest of the media.

And these adjustments to the traditional balance are integral to a series of inroads on norms and laws. For example, the formerly third-rail principle that the president may not try to influence the head of the FBI is now teed up for dismantlement with the proposed nomination of Kash Patel as head of the Bureau. We are watching the initial degradation of democratic rule along the lines of, say, Hungary.

One lesson I take from this sorry series of surrenders on the part of some of the most important legacy media organizations in the country is the value of following independent outlets that you trust. There are many, and they fall across the political spectrum. This Substack and Talking Feds is one among them; we have been independent from the start and resisted multiple overtures to sign onto some of the bigger players in the industry.

Of course, it’s harder for smaller independent actors to stand up against attacks from the likes of Trump and Patel. But to close by quoting George Stephanopoulos: “I’m not going to be cowed out of doing my job because of the threat of Donald Trump.” And there is no corporate parent above me to contradict that stance! So, I’m not going anywhere. I hope you find my thoughts in this Substack useful, but I can assure you that they are and they will remain uncowed.

Talk to you later.