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PaperclipPerfector  1yr ago (text post)   30377 thread views

Culture War Roundup for the week of May 8, 2023

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Defamation Bear Trap

The legal field is filled with ad-hoc quirky legal doctrines. These are often spawned from a vexed judge somewhere thinking "that ain't right" and just making up a rule to avoid an outcome they find distasteful. This is how an exploding bottle of Coca-Cola transformed the field of product liability, or how courts made cops read from a cue card after they got tired of determining whether a confession was coerced, or even how an astronomy metaphor established a constitutional right to condoms. None of these doctrines are necessarily mandated by any black letter law; they're hand-wavy ideas that exist because they sort of made sense to someone in power.

I've dabbled in my fair share of hand-wavy ideas, for example when I argued that defendants have slash should have a constitutional right to lie (if you squint and read between the lines enough). Defamation law is not my legal wheelhouse but when I first heard about Bill Cosby being sued by his accusers solely for denying the rape allegations against him, I definitely had one of those "that ain't right" moments. My naive assumption was that a quirky legal doctrine already existed (weaved from stray fibers of the 5th and...whatever other amendment you have lying around) which allowed people to deny heinous accusations.

I was wrong and slightly right. Given how contentious the adversarial legal system can get, there is indeed the medieval-era legal doctrine of "Litigation Privilege" which creates a safe space bubble where lawyers and parties can talk shit about each other without worrying about a defamation lawsuit. The justification here is that while defamation is bad, discouraging a litigant's zeal in fighting their case is even worse. Like any other cool doctrine that grants common people absolute immunity from something, this one has limits requiring any potentially defamatory remarks to have an intimate nexus with imminent or ongoing litigation.

It's was an obvious argument for Trump to make when Jean Carroll sued him for defamation for calling her a liar after she called him a rapist (following?). A federal judge rejected Trump's arguments on the grounds that his statements were too far removed from the hallowed marble halls of a courthouse. Generally if you want this doctrine's protection, your safest bet is to keep your shit-talking in open court or at least on papers you file in court. While the ruling against Trump is legally sound according to precedent, this is another instance where I disagree based on policy grounds.

Though I'm a free speech maximalist, I nevertheless support the overall concept of defamation law. Avoiding legal liability in this realm is generally not that hard; just don't make shit up about someone or (even safer) don't talk about them period. But what happens when someone shines the spotlight on you by accusing you of odious behavior from decades prior?

Assuming the allegations are true but you deny them anyways, presumably the accuser would have suffered from the odious act much more than for being called a liar. If so, seeking redress for the original harmful act is the logical avenue for any remedies. The (false) denial is a sideshow, and denial is generally what everyone would expect anyways.

But assuming the allegations are false, what then? The natural inclination is also to deny, except you're in a legal bind. Any denial necessarily implies that the accuser is lying. So either you stay silent and suffer the consequences, or you try to defend yourself and risk getting dragged into court for impugning your accuser's reputation.

My inclination is that if you're accused of anything, you should be able to levy a full-throated denial without having to worry about a defamation lawsuit coming down the pipes. You didn't start this fight, your accuser did, and it's patently unfair to now also have to worry about collateral liability while simultaneously trying to defend your honor. Without an expansion of the "Litigation Privilege" or something like it to cover these circumstances, we create the incentive to conjure up a defamation action out of thin air. The only ingredients you need are to levy an accusation and wait for your target's inevitable protest. That ain't right.

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Getting money isn’t “Justice,” and I feel like the legal profession has just gaslit the entire world into believing it is.

I think you'll find that much of the legal system is shaded in the direction of benefitting lawyers.

There’s a reason criminal trials are conducted on behalf of the state and not the victims. It’s because justice is something sought by society against transgressors. Getting money isn’t “Justice,” and I feel like the legal profession has just gaslit the entire world into believing it is. Of course, I think it is very difficult to provide restorative justice to someone who has been physically attacked or raped or obviously murdered. The deed is done, and money won’t magically make it go away.

Justice for a rape victim isn’t their rapist writing them a big check, it’s the rapist rotting in prison and unable to rape more people. That’s why I find statements like the press release for the bill that created this cause of action a figment of lawlogic that’s totally alien to my worldview:

This is a point of view you can to take, but it's not at all obvious, and in fact this is exactly how many societies throughout history handled justice, and it's certainly not new. The entire idea of imprisoning average criminals is a few hundred years old at most, and has only been practical for less than that, and only in rich societies. (Aside from payment, societies also used slavery, exile, execution, torture, and probably other methods I'm forgetting). Similarly for the idea that the state handles everything--polycentric legal systems based on resolving disputes between 2 parties are also very common historically.

I think most victims would be fine with money. For non-murder things.

But society not as much.

The idea of convictions being public record but being able to buy your way out of the prison sentence is interesting. Ancient China did that; murder got you executed and it cost 200 years' worth of a laborer's salary to save your neck. High treason notably was something you couldn't buy your way out of.

This would result in the very wealthy being more or less above the law. Every count of first-degree murder costs you $10 million if you want to see daylight again; lesser crimes carry lesser penalties.

What possible advantage would this have?

Every time you write about legal stuff I just feel more and more convinced that the rules are made up and the laws barely matter.

What is the point of a statute of limitations if it can be changed after the fact to include things previously protected by that statute?

What is the point of the trial related amendments if you can just have your reputation smeared and ruined by the media without anything vaguely resembling "due process"?

What problem are civil courts solving other than 'how to make lawyers rich'?

Plea deals destroying incentives to get your day in court. Prosecutors seemingly immune to any consequences of malpractice.

An old movie keeps coming up in my mind. It took me an hour of searching to find it based on my vague recollections. Interstate 60. There is a section of the movie where the main character (on a mythical road trip) takes a stop in a town called Morlaw. The entire town is comprised of lawyers that are constantly suing each other for everything (get it, Morlaw -> More Law). Any unlucky idiots that find their way to the town get caught up in the web of suing very quickly.

How does the protagonist escape? Do they make a compelling argument that this is insane? Nope, that doesn't convince any of the lawyers. They just see that as another reason to sue him.

Valerie McCabe: Every adult citizen of Morlaw is a lawyer, so everybody sues everybody else. It doesn't matter if there's a cause. It's how we ensure that everyone makes a living of their profession.

Neal Oliver: Yeah, but that's insane.

Valerie McCabe: I could sue you for that. You just made a defamatory remark about this town. Hey, are you looking at my legs? I could sue you for that too, sexual harassment.

Neal Oliver: Is there anything you can't sue me for?

The way the protagonist escapes is by making a call to a friend he met on the road. An ex-marketer that is dying and decides to go on a personal crusade against lying. This ex-marketer has a bomb vest strapped to him, and seems willing to use it. Yup, that's right, it takes literal terrorism to extricate the main character from a web of lawyers. The ex-marketer decides to stay around Morlaw to keep them in line.

Our legal system increasingly resembles a system of "might makes right" if you have enough powerful people on your side then the law can literally be what you want it to be. It doesn't feel like there is a legible system of rules where an underdog that is correct or in-the-right can beat the system. In the end someone might make the same realization that the ex-marketer makes. "Why play by your rules when I'm always going to lose? Why not bring violence to the table?"

The far left and the right basically agree at this point that the law is made up at this point. It’s just human interpretations of what words mean which can be manipulated into anything.

For something not culturally war. What about student athletes. One day they were limited. Next day popular opinion changed. No laws were passed.

https://www.forbes.com/sites/kristidosh/2021/06/21/what-does-supreme-court-decision-against-ncaa-mean-for-name-image-and-likeness/?sh=71bcd9bf500c

What is the point of a statute of limitations if it can be changed after the fact to include things previously protected by that statute?

Civil statutes of limitations aren't put in place to protect potential defendants; they're put in place to serve policy goals determined by the state legislature. If those policy goals change the SOL can change along with them.

What is the point of the trial related amendments if you can just have your reputation smeared and ruined by the media without anything vaguely resembling "due process"?

Most of the trial related amendments are specifically applicable only to criminal cases. The only one unique to civil cases, the Seventh Amendment requirement of a jury trial, has notably not been incorporated under the 14th Amendment. The Fifth Amendment right to due process has, but I'm not sure what kind of process you're looking for. These amendments only apply to the government, not private actors, so there's no due process requirement the media has to go through to report bad things about you. If they're actually defamatory then there's always the option of suing.

What problem are civil courts solving other than 'how to make lawyers rich'?

With certain limited exceptions (class actions), lawyers don't come to clients looking to get rich. Lawyers only get involved when the situation has gone so far that the parties can't resolve matters among themselves. You can probably get by your whole life without needing to go to court, and I hope you do. But when you've been aggrieved it's the only option for justice.

Plea deals destroying incentives to get your day in court. Prosecutors seemingly immune to any consequences of malpractice.

Again, that's criminal, not civil, and has nothing to do with the Trump lawsuit. That being said, most civil cases settle before they ever get to court. Usually something has to go horribly off the rails for an actual trial to take place. But trials are time-consuming and expensive and it's usually better for everyone that things don't get that far, since both parties can usually see where things are going. The first possibility is that this woman really hated Trump and refused to settle because she wanted to get a jury verdict. This is unlikely because I doubt she is a woman of any serious means and litigation is expensive. If Trump had made her a serious offer, the terms of most attorney engagement letters would practically require her to accept it. Obviously, it's ultimately her decision, but if her lawyers took the case on a contingency basis then they're fronting all of the expenses in the hope of getting a decent payout. If they're presented with what they believe is a reasonable offer then they're loathe to continue shelling out cash for diminishing returns. If it gets to this point then in order to avoid settlement the plaintiff will usually have to start paying by the hour and fronting money for expenses for all future work. Since most clients aren't that convinced in the value of their cases to do this, they usually settle. Going to another attorney isn't a realistic option, either, because the current attorney has a lien on the case for the value of all the work that's been done up to that point. Any award the new attorney gets would be subject to deductions in the amount of that lien. Lawyers in general don't like taking on cases in the middle, and having to give up a substantial part of their fee to cover a lien is usually a nonstarter. What's more likely is that Trump refused to settle because he has the means to defend the suit and his public stature means that any settlement would be in the news and viewed by the public as an admission of guilt, even if the settlement expressly denied guilt.

Civil statutes of limitations aren't put in place to protect potential defendants; they're put in place to serve policy goals determined by the state legislature. If those policy goals change the SOL can change along with them.

Every law put in place to serve a policy goal determined by the legislature. This is a banal statement. The question is “what is that goal.”

SOLs serve two purposes — one to allow finality and the second is to be able to provide an appropriate defense (ie memory and witnesses go stale).

Both (but especially the second) are in place to protect potential defendants. Thus, the goal behind the original SOL was by-and-large to protect potential defendants.

Of course the rules are made up—in legislative sessions, where the democratically elected representatives decided this statute-of-limitations business was unjust. How else do you want a change to happen? It is the job of the courts to enact the laws as they stand, not as they once stood.

What is the point of the trial related amendments if you can just have your reputation smeared and ruined by the media without anything vaguely resembling "due process"?

It’s funny that you phrase it like that when talking about a defamation suit, where Carroll applied due process to keep her reputation from being smeared and ruined. And that your example for an “underdog” is a billionaire, celebrity, and politician with millions of loyal followers.

What problem are civil courts solving other than 'how to make lawyers rich'?

Let’s imagine a hypothetical with no civil suits. Trump assaults Carroll in 198X. Carroll, for whatever reason, lets the SOl run out. She later decides to write a tell-all book. Trump can’t sue her, so he just uses his immense popularity, personal social media platform, etc. to ruin her reputation across America. End result: victims are incentivized to shut the fuck up about anything which didn’t make it to a court of law, even if it really did happen.

Civil suits make Trump’s counterattack a liability. They also make Carroll’s claim a liability, discouraging her from falsifiable or malicious statements! This seems like an obvious improvement over the case where the most popular guy gets to shit on whoever he wants by default.

“Get thee behind me, fedposter.”

It’s funny that you phrase it like that when talking about a defamation suit, where Carroll applied due process to keep her reputation from being smeared and ruined.

Is it Carroll vs Trump, or is it Trump vs Blue Tribe?

And that your example for an “underdog” is a billionaire, celebrity, and politician with millions of loyal followers.

The impact of all of these are relative. Billionaire is a lot relative to me, and very little compared to state and quasi-state entities with GDP measured in the trillions. Politician is very influential relative to me, and laughable compared to big business, big media, the federal bureaucracy, and half the country. Millions of loyal followers is a lot compared to me, and very little relative to the dozens of millions within Blue Tribe as a whole.

You want to appeal to the process, because that keeps things clean. But Trump's supporters emphatically do not trust the process, and do not agree that it is being applied impartially. Every time the "process" reveals a novel convolution to the detriment of their interests, their trust decreases further, as it should.

It seems likely that Blue Tribe will get Trump eventually. If this doesn't do it, they'll roll the dice on something else, and something else after that, and so on until the day he dies. All it costs them is the trust of an increasingly furious and desperate other half of the country.

This seems like an obvious improvement over the case where the most popular guy gets to shit on whoever he wants by default.

Funny, that's exactly how I'd describe the current situation. Making this claim requires very specific assumptions about the framing, which are not shared. Because those assumptions are shared by 90% of media workers, academics and government staff, they gain a veneer of legitimacy through repetition, but that does not make them legitimate.

Yes, I am making assumptions. So are Trump’s defenders. I think mine are better-founded.

It is absolutely Carroll v. Trump. Strip away all the political theatrics and you’d still have a valid case. Two if you count defamation. And I’ve laid out my reasons why I believe defamation laws, and civil suits in general, are useful.

The fact that 90% of Democrats line up against Trump does not make the underlying law illegitimate.

Is it Carroll vs Trump, or is it Trump vs Blue Tribe?

When we've got serious claims in this thread that anyone ought to be able to win a 30-year-old he said / she said sexual assault case against Trump because of his known bad character, I think the answer is obvious.

And of course conservatives might dismiss this sort of thing with "well then you shouldn't have had such bad character".

Link? If you’re thinking of me, I sure wouldn’t sign on to that.

https://www.themotte.org/post/483/culture-war-roundup-for-the-week/97645?context=8#context

Close enough, I guess.

The simple answer is a higher standard of proof for a 198x rape claim than 51%. And perhaps a civil suit testimony can’t be used for a criminal perjury charge. Perhaps Trump is a special case but he’s been investigated for 6 years even before he was POTUS. Testifying under oath does represent a huge risks to him.

It doesn't feel like there is a legible system of rules where an underdog that is correct or in-the-right can beat the system.

That seems an odd claim to make in regard to a case in which a former President was found liable by a jury. it is also an odd claim to make re a legal system in which criminal defendants win cases every day, in which asylum seekers win cases every day, in which large corporations lose cases to individual every day, etc, etc, etc..

That seems an odd claim to make in regard to a case in which a former President was found liable by a jury.

Why? The former president is the underdog here.

Yes, I am sure that, had he won, underdogs the world over would have rejoiced that the system works.

Why would they? Being railroaded into a trial where your innocence is impossible to disprove because it's about something that happened 30 years ago is the system failing. If that happens and he's found not guilty, that's the system still failing, just not as badly.

In order for the system to not have failed, New York would have had to not have extended the statute of limitations at all (especially since it was done specifically to get Trump).

Perhaps, but OP's claim was not that Trump was treated unjustly, but that underdogs, can't win. A very different claim.

He didn't say that underdogs can't win, he said that the rules don't lead to the underdog winning. I would agree that this is true when the rule is "no statute of limitations". There's really no way to win with this rule; the results are losing badly or losing but not too badly.

And even if you think being found innocent after a trial that never should have happened is a "win", it's a win despite the rule, not because of it.

I would agree that this is true when the rule is "no statute of limitations". There's really no way to win with this rule; the results are losing badly or losing but not too badly.

I don't understand what you mean. First, if someone loses, then someone wins. Why the loser in this situation would be the underdog is not particularly clear to me. One would think that anything that makes it hard to sue, including statutes of limitations, would benefit the overdog, not the underdog, because the justice system is the only method that the underdog has to hold overdogs to account. Underdogs, by definition, don't have economic or political power.

Nor is it clear to me why you think that limiting the statute of limitations guarantees that the plaintiff will win. The plaintiff has the burden of proof, after all.

More comments

Given how contentious the adversarial legal system can get, there is indeed the medieval-era legal doctrine of "Litigation Privilege" which creates a safe space bubble where lawyers and parties can talk shit about each other without worrying about a defamation lawsuit. The justification here is that while defamation is bad, discouraging a litigant's zeal in fighting their case is even worse.

Legal system creates rules and exceptions to rules that benefit attorneys is a real dog-bites-man sort of story, isn't it? I don't even disagree with the logic here, but it's pretty striking that something that would be defamation if I did it on my own time, advocating in my own interests, outside of a courtroom becomes totally acceptable if an attorney does it in court.

The privilege is not limited to just attorneys. Plaintiffs and defendants enjoy the same benefit, and the "reporting" aspect of the law protects journalists.

Atleast with this case there’s a bit of statute of limitations issue. Shouldn’t someone at some point not have to own up to “I use to be a very bad person” - like I don’t know almost 3 decades seems enough.

Or let’s say a prominent politician use to be an escort (cough Kamela Harris; more of a mistress) and some dudes bragging about how he paid $500 to bang the first women POTUS. I think it’s reasonable she shouldn’t have to say yea I was a whore. But she’s now defamed they guy.

Also in this specific case I don’t think Trump really got a chance to testify in court. In part because he’s the most investigated guy ever and anything he misstates would be open to perjury. And also give the opposing attorney a chance for a fishing expedition on anything (like Jan 6).

This suit came about due to a one-off law passed about a year ago, the Adult Survivors Act. The whole point was allowing a window for victims to sue in spite of any statute of limitations. It appears to be following up to a similar law passed in 2019, so I doubt that it was all set up to nail Trump in particular.

I find the idea that he can't testify for fear of perjuring himself a bit silly. I don't think attorneys are allowed to go fishing once the witness has entered the Zone of Truth, either. (@ymeskhout, can you confirm?) But setting that aside, his defense chose not to call any witnesses, even ones who aren't under half a dozen investigations. That's either an own-goal, or an attempt to make his supporters question the whole thing. I dunno.

Considering the title of the act, it seems like it was more geared towards children (who might have good reason for not coming forward in a timely fashion) who had been abused but are now adults than boomer magazine writers who were abused in their fifties?

I'm certainly not going to read the thing, so not sure whether this is an unintentional loophole being exploited or the act itself was a sneaky way of getting rid of the SOL on sex crimes in general -- either way it seems like kind of a bad idea, as "stale" sex crimes are maybe the hardest sort of crime to fairly prosecute years later?

No, it was definitely meant for cases like this. The press release I linked makes it clear:

In 2019, New York passed the Child Victims Act, which created a one-year lookback window for survivors of childhood sexual abuse to file claims otherwise barred by the statute of limitations.

Similar to the Child Victims Act, the Adult Survivors Act will empower survivors of sexual offenses that occurred when they were over the age of 18. The one-year window will begin six months from signing and will allow survivors to sue regardless of the statute of limitations. For many survivors, it may take years to come to terms with the trauma of sexual assault and feel ready to seek justice against an abuser, while possibly experiencing fear of retaliation or shame.

In 2019, New York extended the statute of limitations to 20 years for adults filing civil lawsuits for a select number of sex crimes. However, that legislation only affected new cases and was not retroactive.

If you're going to speculate about how your outgroup is abusing the spirit of the law, at least go deeper than your interpretation of the title!

OK, so it's just a terrible law with a dumb title -- to be fair that was my second interpretation!

Also weird that they'd create a one year window with unlimited SOL (AIUI) when the law itself establishes a 20 year limit -- Carroll's claim would have been barred if this law had been in effect the whole time, right?

I think so. Though…not the defamation claim, which all shook out before she ever filed anything about the actual assault.

But yes, a one-year “purge” for past grievances is an odd policy. I don’t know enough to say how it came to the public attention. There seem to be some advocacy groups pushing for SOL extension in general; maybe they are responsible?

Stale sex crimes are very easy to prosecute if you use a preponderance of the evidence standard and the word of the accuser is sufficient to establish the preponderance.

Who could he have called as a witness? It’s a 30 year old case. She can’t even say what year it happened. He can’t produce some dude who could testify I was at dinner with him on the alleged incident.

IMO there is something strange with changing statute of limitation decades later even if this wasn’t completely about Trump.

Plus any potential witness they called would be liable to face non-stop legal action from the state of New York.

Who could he have called as a witness? It’s a 30 year old case.

This is the thing I keep coming back to, and it's the same thing that pissed me off about the Kavanaugh hearings, where the accusations were repeatedly framed as "credible". OK, it's true that the accusations aren't impossible and the accused surely can't disprove them, so that does meet some definition of "credible". I would probably agree that it rises to the level of extending some degree of empathy towards the putative victims, particularly if you're actually going to personally interact with them. Nonetheless, what the hell is the accused expected to do in such a situation?

When I think of parties that I was at, women that I did hook up with, women that I didn't hook up with, and so on, I have absolutely no idea how I could even begin to refute a claim about something that supposedly happened 20 years ago. Was I at a given person's house on an unspecified day in an unspecified year, drinking heavily? I don't know, possibly. Probably even, for some specified houses and date ranges. Could I account for who was there on a given unspecified evening? Definitely not. Are there women that I had sex with at the time that I only barely remember now? Definitely so. Are there others that were present that I won't recall at all? Definitely so. With lack of specificity that seems to still count as a "credible accusation", I don't see any plausible path to actually being able to disprove it. At that level, it actually sounds entirely reasonable to start bringing things up like, "she's not my type" or "wait, you're saying that this happened in a dressing room and no one at all noticed?". The accused can't really deny the time and place because there is no time and they may have gone to that place, but they can take a stab at whether the story seems actually plausible at all.

It depends on what other evidence is available at the time. If there's a recording of you talking about how you like to grope women because they'll just let you do it, it might be enough to move the needle to 51% in a pure he-said-she-said.

From Trump “she’s not my type” does seem credible. If you say the quiet part out loud that she was older than he would go for.

And embedded in this a lot of girls still expect guys to be the aggressor. I still remember the first love of my life rejecting my advances as I dropped her off at her place and saying no a dozen times. And then sending me a text 10 minutes later asking why I didn’t sleep with her. Which isn’t completely related but does apply to a lot of trump comments.

Trump does seem like someone who’s a believer in the alpha male stereotype where he should be the aggressor and no doubt a lot of women have rewarded him for that. So he very well may have been intimate with the accuser. Something completely not explored (because of it’s 30 years ago) she may have been into his assertiveness. But now that he’s a white supremacist, racists, anti-trans politician it’s rape.

From Trump “she’s not my type” does seem credible. If you say the quiet part out loud that she was older than he would go for.

It would have been credible had he not misidentified her as Marla Maples in a photograph during a deposition.

That was a very funny blunder from the deposition. The best explanation on this front remains that Donald Trump is functionally blind. He frequently misidentifies people right in front of him and all the notes he's seen actively using are written in a comically large font size. I don't really understand exactly why a billionaire can't use contact lenses, lasik, or whatever other space age vision technology is available, but it's funny how much legal liability he's willing to endure just to avoid being filmed wearing glasses.

And embedded in this a lot of girls still expect guys to be the aggressor. I still remember the first love of my life rejecting my advances as I dropped her off at her place and saying no a dozen times. And then sending me a text 10 minutes later asking why I didn’t sleep with her.

Most agentic young woman.

Girls/women are often indeed extremely passive when it comes to dating. I hope you sealed the deal, whether by immediately turning back to her place or by eventually somehow slow-rolling it. Such experiences are pretty common, though, hence their contribution to the coffee emoji meme spreading like wildfire.

A lot of times, a “no” from women just means try harder, try differently, or try later such that they can better protect their wonderfulness, maintain plausible deniability, and sidestep accountability. So that they can tell themselves and/or their friends that “omg it just happened, teehee.”

Chad pussy-grabbers vs. Virgin boundary-respecters.

It’s why there was so much seething and pearl-clutching from the online-left over Trump saying to just “grab ‘em by the pussy.” Trump stumbled upon something, inadvertently touching a third rail.

Such a remark from Trump was a reminder that high status men can just go full steam ahead and plow through the “rules” that lower status men have to abide by—and that women, ultimately, are happy to be submissive to things like male status and fame in the moment, even if they may retrospectively decide otherwise. Sometimes years or decades later, if the original encounter occurred at all.

Mainstream progressivism insists that male sexual success is driven by the extent to which men are dutiful, respectful male feminist allies. High-status men casually grabbing women by the pussy or creampie-ing them in the stairwell ruins the illusion of male sexual egalitarianism, the illusion of lack of female hypergamy, the illusion of a magical Just World where male sexual success is dictated by whether they have socially progressive attitudes.

Kavanaugh was strange enough that he not only made a calendar showing what he was doing each day, but he kept it. It still wasn't enough to disprove the allegations because they weren't actually specific enough.

That is one of the reasons for a SOL — evidence becomes very stale.

Also I suppose now the witness could be sued for perjury if they stood by their testimony after losing the case.

Perjury isn't a civil offense, so no.

Right, I meant slander.

According to my high-school history teacher: the British would actually do this in the 1700s. Accuse someone of a crime, force them to testify, find them guilty, then punish them for lying since they just claimed they didn't do it. Providing a robust defense was merely lying to the court and punished accordingly.

And also give the opposing attorney a chance for a fishing expedition on anything

The judge establishes "motions in limine" to set up the contours of how the trial would proceed and what topics can be addressed. The judge dealt with these disputes ahead of trial (see the case docket), including determining whether the Access Hollywood tape would be admissible. Is there anything within the docket that leads you to believe that the opposing attorney would have been allowed to go on a (presumably irrelevant) fishing expedition?

It’s New York. They are literally charging him already with novel legal theories. And this isn’t even the first time he’s faced novel legal theories. The first time was his associate Flynn who faced novel legal theories on a Logan Act Violation. Anything he said under oath would be liable to anything a hungry DA could come up with.

Between this and your response to me, I think you're moving the goalposts.

It's outside the statute of limitations.

No, it wasn't.

But then he didn't get to testify!

Yeah, he did, but chose not to. And chose not to bring any witnesses.

Of course he wouldn't want to testify! Fishing expedition!!

@ymeskhout gives a reason why that shouldn't be the case, since the rules were laid out ahead of time. I'll add that if a guy can't say anything without lying, maybe he's got a bigger problem.

They might have used novel legal theories!

Regardless of how I feel about Mr. Bragg, I don't have any reason to believe he controls the rules of this civil suit. One that's been in the making since before he was elected.

More importantly, it didn't take any new legal theories! You had to construct this hypothetical lest you admit Trump might have made an error. Can't have that. Anything that looks like a blunder on his part was just 5D chess, preempting some new and exciting abuse of power by his haters.

Sometimes the simplest explanation is the best.

I’m not sure where talking to you I mentioned statute of limitations. But yea changing the statute of limitations after they expired is problematic (though not just applied to Trump).

“Chose not to”. Ya sure a guy who’s already had issues with improper investigations over choosing to talk (Flynn - Logan Act) should just want to have a thousand people investigate him for anything be possible said wrong for perjury.

“Fishing expeditions”

How many investigations has Trump and/or Trump associates had investigations into them?

I can summarize your entire response too. Yes us conservatives have faced a lot of bullshit so yes we have trust issues in the “process”

I'll add that if a guy can't say anything without lying, maybe he's got a bigger problem.

If a guy declines to testify on his own behalf because he can't say anything under oath without being accused of lying, and if he can then be forced by law to spend his own money to defend himself whilst again unable to take the stand himself, the problem he has is known as a witch hunt.

The only ingredients you need are to levy an accusation and wait for your target's inevitable protest.

And a crucial third ingredient: have the intended victim of this trap be Donald Trump. Other people in other situations, such as Hillary Clinton defaming the women who accused Bill Clinton of raping them, are not dragged into civil cases.

Are we to interpret this as a consistent principle that judges would apply to prominent Democratic politicians when they deny accusations? Or just a weapon to be used on Trump and then put away?

Well I first heard about it when it happened to Bill Cosby, maybe that's where Jean Carroll's lawyers got the idea from. I don't see the evidence that this legal tactic was invented for Trump.

E Jean Carroll was advocating for the law to be passed so that she could sue trump.

https://www.newsweek.com/trump-accuser-pushes-new-york-pass-adult-survivors-act-plans-sue-rape-1668261

Hillary Clinton defamed those women and then did not get dragged into civil suit.

Bill Clinton indeed got impeached for lying about a consensual blowjob. But that has nothing to do with Hillary defaming his rape victims.

These are separate matters so let's not blend them all together into some composite for comparison.

...none of which is Hillary clinton being sued for defamation for, to put it bluntly, calling the women accusing her husband of rape lying sluts.

Was James Carville ever sued? He was the one that commented that "[i]f you drag a hundred dollar bill through a trailer park, you never know what you'll find," which seems far more insulting than anything I can think of HRC saying herself. Though it's probably too vague to be slanderous, legally-speaking.

Yep, it's too vague to be slanderous. You're allowed to insult people, you just can't claim that they did things that they didn't do. Even more specific epithets like "racist" have been ruled too vague to support a claim of defamation.

What are the specific statements she made you think constitute defamation?

In a '98 NBC interview she called the sexual assault allegations against her husband a "vast right-wing conspiracy".

During her NBC interview, when Lauer said, "So when people say there's a lot of smoke here, your message is, where there's smoke..." Clinton interrupted.

"There isn't any fire," she said. After the allegations and motivations are dissected and the truth emerges, she predicted, "some folks are going to have a lot to answer for."

This was in an NBC interview, not a courthouse (like Trump's comments), and appears to directly suggest that all of the women are liars, which appears at least modestly similar to Trump's supposedly-defamatory remarks.

Ultimately, I think I have to conclude that denying allegations should probably enjoy specific privilege from defamation concerns.

This is basically the "you calling me a liar?" argument. Wouldn't a straightforward boundary be that statements about your own thoughts and behavior are always permissible, regardless of the implications about the thoughts and behavior of another? Thus, "I don't know her" is not actionable, even though it implies "she is a liar", which could be actionable. "I was afraid of him" would not be actionable, but "he threatened me" could be.

Why do we have laws against defamation in the first place? Seems like generally, lying should be legal, or it opens up all sorts of issues.

Why do we have laws against defamation in the first place?

Because human beings are not computers and operate with imperfect information.

Let's assume that someone makes a false complaint about the quality of work that you do- for instance, leaves a one-star review (to go with a popular example). This will affect your ability to get future business, and hence future income- you have been materially harmed by that statement. If that was done maliciously, how's that different than stealing that income directly?

Now, the US tries to play objectively, so you'll only get punished for doing it if it was false, and any reasonable person would have known it was false. But the problem is that even true-but-distasteful statements, like #metoo descriptions of sexual activities, have the same effect, which is why more conservative countries (like European ones) will punish true statements of this type as well whereas more liberal countries (by definition) value not punishing truth-telling over doing justice to liars.

That's the general idea behind it, anyway; whether those countries succeed in their aims is an entirely different matter, of course.

This is fair pushback, and you've outlined some potentially messy implementation issues I hadn't thought of. I grant that in some cases figuring out "who started it" might be complicated but the legal system has dealt with much thornier issues. In this instance it could take a page from the concept of "comparative negligence" to figure out how to settle the dust.

But assuming the allegations are false, what then? The natural inclination is also to deny, except you're in a legal bind. Any denial necessarily implies that the accuser is lying.

This is the part I find a lot of problem with whenever this topic comes up, often in the context of sexual assault/rape accusations. I don't think any denial necessarily implies that the accuser is lying. It necessarily implies that the accuser is wrong. Given what we know about the fallibility and malleability of memory, particularly when stressful situations are involved, it's entirely possible for the accuser to be honest to the best of their ability and still be completely, entirely wrong about the facts of what occurred. I don't know if this affects the legal calculus of the potential defamation suit; is the claim that an accuser is making an incorrect accusation for whatever reason - without implying that the accuser is lying - defamation? I don't know, but that's the actual pertinent issue than the claim that they're actually lying.

I believe that Christine Blasey Ford was not lying about Judge Kavanagh sexually assaulting her. I believe she has extremely vague memories of being grabbed and groped by a drunk guy 40+ years ago and believes Kavanagh did it.

My best estimation is that she is factually wrong, but indeed not a liar.

I’m not even sure the incident happened as Ford imagined. I can imagine some guy joshing around and Ford believing X happened (ie a misinterpretation). Doesn’t make her a liar. But a woman her age should have the perspective that maybe my memory isn’t perfect and maybe the situation was a bit different than even I thought.

Yeah. The year and location of the incident is quite slippery in her memory. She barely recalls any details and they change from one memory recall to the next.

A drunk guy grabbed her once. I believe that happened in some manner at some point in her life. I don't trust her for any other detail or fact from recalling 40+ year old memories.

Having reread the story as she told it, I think there’s some evidence that she was changing the story to fit things he provided.

The number of people in the room changes. There were four, then five (one female). She couldn’t name them.

The location of the house moves once it’s made clear that the party he went to was miles away from the location she describes.

The geometry of the house changes (the stairs go from short to narrow, the living room and family room were initially separated allowing her to escape; until it became one bigger room).

The timing changes. She was older in the original story, which changed once she realized he would be at Yale at the time.

I think there was a real rape, and she was raped by someone. But it always seemed odd that she’s constantly trying to fit her memory to the details he provided. And to my knowledge she never really stuck to her guns and said he’s wrong, this is what happened. So my best guess is that she’s describing a different party at a different time, one that she knows Kavanagh had nothing to do with, but she’s trying to put him and herself in the same room in the same house even though none of the details actually fit.

To go one step further: she wasn't raped by anyone in any circumstance. She was grabbed and groped. Which is scary and bad, but not rape.

She was never raped and the man who didn't rape her was probably not Kavanagh.

It seems like an inconsequential distinction to me, not worth hanging defamation liability upon. It's true that an accusation could be false either intentionally or by mistake. If someone makes an intentionally false accusation (read: lying) and you know that, then wouldn't it be misleading (or perhaps even lying) to accuse your accuser of a mistake instead of a lie?

Even if the point you make is adopted as regular practice (where the accused avoid claiming anyone is lying, just that they're mistaken) would it make any practical difference? If the accuser denies that they made a mistake but you insist otherwise, is that materially different from accusing them of lying?

When denying an accusation, I don't think you need to specify whether the accuser is lying or merely mistaken. Just that they're wrong. If you go into specifics, e.g. explicitly accuse the accuser of lying, I think it'd be correct to leave you open to liability. But that level of specificity isn't necessary for denying an accusation.

I disagree, the specifics are important here. I deal with this constantly with clients who deny the allegations but then have no follow-up explanation. In a hit & run case, the defendant denies he was driving the car. Ok then who was driving your family's car then? In a stabbing case, the defendant denies the witness correctly IDed him. Ok then who else had access to this building? In another case, the defendant claims the witness is lying. Ok how do you know? why are they lying? what's their motive? when did they coordinate their stories? etc and so on.

It's frustrating to me when clients air out vague general denials because then there's nothing else for me to do as a defense attorney but also on a personal level it makes me suspect the truth of everything they tell me. Generally speaking, as a rough heuristic, the truly innocent clients of mine tend to express the same amount of curiosity about their case that I do. If they were really IDed incorrectly, they absolutely want to know who this doppelganger is. They barely can stop themselves to give me names of people to talk to, companies to subpoena, surveillance cameras to examine, etc.

I disagree, the specifics are important here. I deal with this constantly with clients who deny the allegations but then have no follow-up explanation. In a hit & run case, the defendant denies he was driving the car. Ok then who was driving your family's car then? In a stabbing case, the defendant denies the witness correctly IDed him. Ok then who else had access to this building? In another case, the defendant claims the witness is lying. Ok how do you know? why are they lying? what's their motive? when did they coordinate their stories? etc and so on.

I know this list of examples is in no way exhaustive, but only one of those examples had the accused person making a positive claim about someone else being dishonest (the lying witness). The others seem to me, if those questions were answered and explained, to be just fine ways to deny the accusation without impugning the accuser's honesty or otherwise defaming them. For the claim that a witness lying, I'm thinking the defendant shouldn't claim the witness is lying unless they have some specific evidence or motive, and if they lack such a thing, they should retreat to the "witness is wrong" claim rather than "witness is lying."

IANAL, so I can't speak with authority on any of this, and I can't speak to the ins and outs of how a defense strategy gets formed and implemented. It just seems to me that, unless there's specific reason to think so, there's no need to claim that an accuser is lying, but rather just wrong. If they claim that the accuser is lying but lack the evidence to substantiate it, then they shouldn't have made such a claim as part of their defense in the first place, so not being able to do so for fear of a later defamation lawsuit down the line doesn't seem like a loss. If they do have such evidence, then that would strengthen their defense and also protect them, however imperfectly, against defamation lawsuits.

My point was broader than just the scenario of calling the accuser a liar, I was highlighting examples to illustrate how unconvincing vague general denials are. If someone levies an allegation that you deny, the natural reaction from bystanders is to wonder why an accuser would lie or otherwise be wrong about something so serious. A denial is much more credible if you can offer some sort of explanation to that burning question.

I've never met this person in my life. She is trying to sell a new book-that should indicate her motivation. It should be sold in the fiction section.

…

"If anyone has information that the Democratic Party is working with Ms. Carroll or New York Magazine, please notify us as soon as possible. The world should know what's really going on. It is a disgrace and people should pay dearly for such false accusations."

You make a good point—I wonder if keeping it to the Shaggy Defense would have avoided any defamation. As it is, he fit it into his “witch hunt” narrative, and really put her on blast.

You need a third ingredient. If the accusation is false, what’s stopping the target from suing your ass first? The truth is an absolute defense against defamation. This incentive only arises when the accuser has enough evidence to protect against a lawsuit. That’s hardly out of thin air.

The truth is an absolute defense against defamation

Only in some countries. For example in Japan you can be found guilty of defamation even if what you said is 100% demonstrably true. In some cases having it be true is even worse than lying as damages are calculated on harm done to someones reputation, and if people can independently verify that your speech is true is does more harm.

I tried to find a good article exploring the reasons/consequences of this but couldn't. Anyone have a link?

I live here (Japan) and this is only one aspect of Japanese law that makes me uneasy. I even pause when leaving online restaurant reviews for this reason.

For me it was the police's ability to hold anyone in custody for up to 23 days without charges. I avoided police, and in the rare case I had to interact with them I was exceedingly deferential and polite.

The most instructive scenario to consider here is how the Shitty Media Men litigation transpired. Suing people is a significant time commitment and money sink, especially for defamation. Out of the 70 men on that list, AFAIK only Stephen Elliott was dogged enough to pursue legal action. As nonsensical as some of the accusations against Elliott were ("unsolicited invitations to his apartment") he was "lucky" that his sexual habits were peculiar enough and his accusations specific enough that he could at least try to mount a credible rebuttal:

I don't like intercourse, I don't like penetrating people with objects, and I don't like receiving oral sex. My entire sexuality is wrapped up in BDSM. Cross-dressing, bondage, masochism. I'm always the bottom. I've been in long romantic relationships with women without ever seeing them naked. Almost every time I've had intercourse during the past 10 years, it has been in the context of dominance/submission, often without my consent, and usually while I'm tied up or in a straitjacket and hood. I've never had sex with anyone who works in media.

I am not seeking to come out about my sexuality as a means of creating a diversion, as Kevin Spacey appeared to do when he was accused of sexual misconduct. I've always been open about my sexuality, and I have even written entire books on the topic. I've never raped anybody. I would even go one step further: There is no one in the world who believes that I raped them.

I grant that maybe some of the accusations on the list were true, but many were just vague and accordingly impossible to defend against. Lawsuits are also seen as antagonistic, and there is significant social pressure against resorting to that remedy. I gather that some men just found it easier to slink away than risk magnifying their pariah status within the gossip-friendly field of media. Elliott eventually "won" a settlement from the list's creator but who knows how much money each side bled out since the lawsuit dragged on for almost five years.

Actually suing someone is expensive but threatening to sue someone isn't expensive. It's expensive on the plaintiff's side too, and unless you're of enough means that an attorney can expect to actually collect on a decent size judgment, good luck even finding someone to take the case. Most of the people who find themselves the subjects of defamation suits where the defamatory remarks are mere denials of other potentially defamatory remarks have enough money that they could marshal some powerful attorneys who could nip the thing in the bud before it becomes a big deal. Trump could have easily afforded to have some biglaw attorney draft a letter explaining that the comments were defamatory and he's prepared to sue unless she's willing to make a public denial. If she balks, have a complaint drafted that will be filed if they don't start making progress in negotiations. After she finds out how much it's going to cost for the cheapest attorney in town to defend something like this she'll probably consider recanting.

That being said, I agree with you overall because having rich people threaten expensive lawsuits to fend off average people who say bad things about them is a pretty shitty way to do business, especially if the allegations are true. I'd much rather have a situation where mere denials aren't considered defamation, regardless of how far along we are in the chain of "who started it". Wealthy people have the option to threaten litigation to shut people up as it is, and I'd rather see some reform before they resort to actually doing it to fend off lawsuits.

Okay, but that kind of wrecks the incentive to make up accusations whole-cloth. The more people—or the more prominent—you target, the higher chance that one of them is Peter Thiel.

Okay, but that kind of wrecks the incentive to make up accusations whole-cloth.

I'm not sure what you mean by "that". The creator of the Shitty Media Men list did lose in this instance but this was a unique and unusual set of circumstances.

Without an expansion of the "Litigation Privilege" or something like it to cover these circumstances, we create the incentive to conjure up a defamation action out of thin air. The only ingredients you need are to levy an accusation and wait for your target's inevitable protest.

We already have “something like it,” and it’s the normal defamation torts. They already threaten would-be accusers with liability. Sure, following through is expensive and uncertain. But it clearly can happen—especially if the accused is rich, reputation-conscious, or has proof.

Expanding litigation privilege swings the balance too far. It gives the accused every incentive to smear the accuser’s reputation, regardless of the truth. That sort of speech should be kept to a court of law, where it is already protected.

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