ATL Redline, Defamation, Justice, Politics

Melania Trump Lawsuit Is Not The 'Next Gawker,' It's The Open Beta Of A Trump Presidency

Donald Trump has been out front with his open hostility towards a free press, but I'm not entirely sure Hillary Clinton is significantly better in this regard.

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(Image from Getty Images)

(Image from Getty Images)

Gawker was sued into oblivion for invasion of privacy, not defamation. To the extent that we will still get to have a First Amendment in Peter Thiel’s America, that is an important distinction. Celebrities and public people are entitled to the same level of privacy as anybody else. Whether or not that includes the right to bankrupt a media company because your buddy recorded you boning his wife in a room you knew was wired for film is a matter for another generation of media lawyers.

Melania Trump is suing the Daily Mail and Maryland blogger Webster Tarpley for libel, not invasion of privacy. She claims that the sources falsely and recklessly reported that she was an escort, which she says is not true. The Trump team is being represented by Charles Harder, who represented Hulk Hogan in his lawsuit against Gawker.

The potential chilling effect on journalism and freedom of expression is arguably greater with defamation and libel suits than with privacy suits. Melania Trump is a public person. I don’t mean that politically: I personally think it’s cheap when people bring up a candidate’s family in an attempt to score political points. But as a legal distinction, she has to be a public person. If a famous person can bust up the media over reporting an allegation, we should all be very worried.

Of course, calling someone a prostitute can be defamation. I didn’t read the initial Daily Mail story about the Trump allegations, but it’s worth noting that story has been retracted. The Daily Mail claims that it was merely pointing out that these allegations about Melania’s past were out there, and that their story mentioned that there was no evidence for these allegations. But any media lawyer knows that simply throwing out the term “allegedly” before every unsupported statement is not a great defense.

The headline of the initial Daily Mail article does not scream “thoughtful review of unproven allegations.” Instead, they wrote this:

Naked photoshoots, and troubling questions about visas that won’t go away: The VERY racy past of Donald Trump’s Slovenian wife

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That’s not a great look.

But most political campaigns would ignore this kind of crap. Hillary Clinton has been accused of everything shy of the Kennedy assassination. Rudy Giuliani has gone on television to repeat baseless accusations about Clinton’s health. The Bush daughters were a constant source of tabloid buzz. It’s just as grubby at the local level: when my father was in office, you could find Geocities blogs that said that I was a heroin addict on probation for hitting a cop, when in fact I was a student at college (not mutually exclusive, I know, but false in every possible way nonetheless). When you run for office, this kind of stuff happens to you and your family. Most politicians look away and focus on the issues 90 percent of the electorate cares about.

Not team Trump. A key part of Trump’s campaign is to demonize and de-legitimize the media. The scariest thing Trump has said during this campaign, to me, is not about deportation forces or punching opponents, it’s when he said he would “open up libel laws,” whatever the hell that means. (Note: actually, that’s not right, the scariest thing was when he said he wouldn’t rule out nuking Europe. Jesus Christ, Republicans. Jesus Freaking Christ.)

This lawsuit has to be viewed in that context. This is not a celebrity getting pissy about something written in the Daily Mail. This is a strongman’s first legal assault on free speech. If elected, there will be others. There’s danger here, even if you think Trump has a totally legitimate claim.

And while Trump has been out front with his open hostility towards a free press, I’m not entirely sure that Hillary Clinton is significantly better in this regard. She doesn’t run to her lawyer every time somebody says ouchy words about her, but is she really the person who is going to protect the freedom of the press? The same press that took, maybe, three weeks off to actually write critically about Donald Trump before getting back to its regularly scheduled program of bashing the hell out of her as they have been for 25 years? Both Clinton and Trump think that the press are their enemies. That they have different ways of curtailing the press is important, but as with so many issues in this election, you’re kind of choosing between a rock and a spinning hellscape of fire and death.

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The Gawker lawsuit was kind of the shock-and-awe of the assault on the press, from both sides of the aisle. This Melania thing is not that. Instead, we’re looking at the first ground forces.

We may look back fondly on the time when the only thing that could ruin your media organization was being accused of publishing a stolen sex tape. We may nostalgically remember when Anthony Weiner’s schlong selfies were legitimate news, instead of illegal “revenge porn.”

You think “political correctness” curtailed your free speech in public spaces? Wait till you see what happens next.

Melania Trump Charges That She Was Libeled by The Daily Mail [New York Times]

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