Trump vs. the First Amendment

Because a claim must be false to be libelous, truth is an absolute defense against libel. So, for instance, if I write that Donald Trump is a blazing jackass who has driven his companies into bankruptcy four times, mainly because he doesn’t know how to handle debt, Trump can’t do anything about that, because it is true. If I write that Trump is poorly positioned to take on Wall Street because he owes practically every bank on the street enormous sums of money, I’m golden, because it is true. If I write that Donald J. Trump is a lowlife who has cheated on his wives and betrayed his own family and the families of others through his remarkable personal commitment to adultery, Trump has no recourse, because this is true. If I write that the fact that Melania Trump was a client of Trump’s dopey little modeling agency strikes me as creepy indeed — I advocate the separation of sex and payroll — I’m on solid ground, because the facts of the case are not in dispute. If I write that you credulous yokels who believe that Trump is self-funding his presidential campaign have fallen for an obvious lie, I am protected by the fact that this is documented truth.

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The second issue — whether a claim is defamatory — can get complicated. “Defamation” means damaging someone’s reputation, and if you are a serial adulterer, serial bankrupt, serial liar, an incompetent, and a tangerine-colored buffoon with the worst comb-over in the history of comb-overs, it is difficult to damage your reputation. The courts have held that some people are “libel proof,” meaning that their reputations already are so low that you cannot actually damage them. The textbook case of this is the serial killer Randy Kraft, whose libel case against a true-crime writer was thrown out on the grounds that serial killers have no good name to damage. But it need not be that extreme. For example, Penthouse founder Robert Guccione once sued Hustler magazine for — this is hard to believe — allegedly damaging Guccione’s reputation as a family man in an article reporting that Guccione maintained a live-in girlfriend while he was married to another woman. The basic claim was true, but Guccione was divorced at the time the article was published. The court found, reasonably, that Guccione had not established a reputation as a man of remarkable marital probity in the interim. Given that Trump has approached the sacrament of marriage with approximately the same seriousness as the great souls behind Hustler and Penthouse, it is not at all inconceivable that he might be held to the same standard in a similar context.

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