A major media outlet reported that a public figure accused of sexual assault was accused of “rape.” The accused saw an opportunity to use the court system to retaliate. He filed a defamation lawsuit seeking substantial damages.
The effect of the lawsuit on the climate for press freedom was … nonexistent. It was thrown out of court, and the plaintiff didn’t see a dime.
As you might have guessed, I’m not talking about Donald Trump, who recently extracted a $15 million settlement from ABC over George Stephanopoulos using the R-word in discussing the sexual abuse verdict against the president-elect. Many fear the settlement will lead to timidity by the press during Trump’s second term.
I’m talking about Peter Ludlow, a Northwestern professor accused of sexual assault over a decade ago. The court that disposed of his lawsuit confirmed that “rape” and “sexual assault” — what he was technically accused of — are interchangeable in common usage (they’re synonyms according to Merriam-Webster). An appellate court affirmed the dismissal, though on different grounds.
Full disclosure: I was part of the legal team that defended the Chicago Sun-Times against Ludlow’s lawsuit, along with my former law partner, Damon Dunn, whom ABC probably should have hired. Ludlow also unsuccessfully sued Cumulus Broadcasting and Fox Television Stations.
The court, of course, got it right. No damages result from which synonym a reporter chooses. Find me the person or company that’s eager to do business with alleged sexual assailants and abusers but draws the line at alleged rapists. It’s certainly not Northwestern. The university initiated termination hearings against the professor after an investigation found he sexually harassed two students, leading to his resignation.
So why did the ABC case turn out differently? To ABC’s credit, it did seek early dismissal, just like Sun-Times, but it lost. It should’ve prevailed, but sometimes a case just draws the wrong judge.
Losing a motion to dismiss isn’t the end of a court case, though. Plus, news outlets usually don’t pass up opportunities to depose presidents about serious, salacious allegations. Imagine a news broadcaster surrendering a chance to question Bill Clinton under oath about his sex life during the Monica Lewinsky scandal.
Some have speculated there must be more to the story. Did ABC fear embarrassing correspondence coming out in discovery? Maybe. Fox News probably wishes it settled (much stronger) defamation claims by Dominion Voting Systems before damaging messages emerged.
Why settle flimsy case?
But there’s too much at stake for Disney-owned ABC to worry about embarrassment. Paying millions to settle a flimsy case from an anti-press president-elect sets a damaging precedent, especially for smaller outlets and independent journalists without Mickey Mouse’s moneybags.
Anyway, whatever discovery would’ve revealed doesn’t change what Stephanopoulos said or impact the legal question of whether it was meaningfully more damaging than the undisputed truth: A jury of Trump’s peers found him liable for sexual abuse.
That jury, by the way, awarded E. Jean Carroll $5 million. Was Trump damaged three times more by Stephanopoulos’ choice of words than Carroll was by being sexually abused? And contrary to common belief, the $15 million isn’t going to a presidential library, it’s going to a private foundation Trump’s team can use to fund a propaganda shrine.
Other reports, citing anonymous Disney executives, suggest ABC believed it was serving the greater good (seems like the kind of self-serving “leak” someone doing damage control might recommend, but I digress). Those sources noted that if the case proceeded, Trump could use it as a vehicle to challenge New York Times v. Sullivan.
That Supreme Court case established a high bar for defamation claims against public officials, recognizing the Fourth Estate needs breathing room for inadvertent errors to speak truth to power. The line between caution and self-censorship is thin.
Attempts to walk Sullivan back are a real concern — at least one Supreme Court justice, Clarence Thomas, wants to do just that — as does Florida Gov. Ron DeSantis. But that excuse for settling seems like a cop-out. If news outlets write eight-figure checks to get rid of defensible cases out of fear of harming Sullivan, then what good is Sullivan anyway?
Back in the days when news outlets were owned by news companies, a strong First Amendment was fundamental to their economic interests. Unless they’d messed up badly, they rarely settled, even when it would be cheaper than litigating. It’s fair to question whether that equation changes when news comprises just a fraction of ownership’s holdings.
As newsrooms shutter nationwide, Trump and other censorial public figures emboldened by his antics will continue attempting to tame the watchdogs by kicking them while they’re down. To their future victims: Be like the Sun-Times and its co-defendants. Don’t be like Disney.
Seth Stern is the director of advocacy at Freedom of the Press Foundation and a First Amendment lawyer.
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