I have previously expressed skepticism over some defamation cases against the media brought by President Donald Trump under existing case law. However, comedian Rosie O’Donnell may have supplied the President with a another defamation case if she cannot back up sensational claims made against the President to her 2.9 million TikTok followers. She states as a fact that the President is an “adjudicated rapist” and settled child abuse cases.
O’Donnell seems to spend much of her days in a constant rave about Trump, Republicans, and the demise of the United States from her new home in Ireland. That is fine and an exercise of free speech. However, it may have crossed the line into defamation in her latest posting.
O’Donnell stated:
“Did you think it a million years that they would reelect a man who orchestrated an insurrection against the government? They would reelect that guy with all the charges of sex abuse? — the adjudicated rapist…And then I just saw this thing today about all the cases he’s settled with children, children’s families, accusations about him, that he chose to settle.”
She added:
“When are we going to be able to go, ‘We’re grown up enough to understand that this kind of deviant, psychotic, mentally ill behavior goes on at the highest level sometimes, and no matter where it goes on, it is our duty to stop it,’” O’Donnell continued in her unhinged rant…Shame, people. Shame on what has become of us.”
Notably, at least eleven months ago, O’Donnell called Trump a “rapist” and a “serial pedophile rapist.”
Trump previously sued over the claim that he is a rapist. He lost such a case against E. Jean Carroll after a judge ruled that her claim to have been raped by Trump was “substantially true.” The judge wrote: “The only issue on which the jury did not find in Ms Carroll’s favour was whether she proved that Mr Trump ‘raped’ her within the narrow, technical meaning of that term in the New York penal law.”
Nevertheless, Trump was not legally “adjudicated” to be a rapist. The addition of the word “adjudicated” could move the claim outside of mere opinion.
Even without that word, it is considered potentially defamatory to claim that Trump is, in fact, a rapist despite the earlier ruling in New York. MSNBC and the show “Morning Joe,” for example, quickly retracted a statement that Trump was a “rapist.”
The earlier denial of the defamation case certainly would help O’Donnell, but it is not dispositive. More importantly, that is not all that she said.
The second claim is that Trump settled with the “children’s families” over abuse cases.
It is not clear what the basis for this allegation is, but Reuters reported months ago about fake headlines on the Internet claiming that prosecutors were considering “child molestation charges” against Trump.
It is not clear if O’Donnell can produce support for the claim. If she cannot, it would certainly constitute “per se” defamation.
The common law has long recognized per se categories of defamation where damages are presumed and special damages need not be proven. These include: (1) disparaging a person’s professional character or standing; (2) alleging a person is unchaste; (3) alleging that a person has committed a criminal act or act of moral turpitude; (4) alleging a person has a sexual or loathsome disease; and (5) attacking a person’s business or professional reputation.
Claiming that Trump settled child abuse cases would certainly trigger a couple of these categories.
The United Kingdom is generally a better jurisdiction to bring defamation cases than the United States, which has stronger free speech and free press protections.
In the United States, any such action would have to be brought under the higher standard. In New York Times v. Sullivan, the Supreme Court established the actual malice standard, requiring public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth. That standard was later extended to public figures.
If O’Donnell had no credible sources for this claim, it would appear to be clearly a reckless disregard of the truth.
That she said this to millions of followers only magnifies the general damages presumed in such cases.
Unless O’Donnell can argue truth as a defense with credible support for such settlements, she may have just given Trump a golden opportunity to pursue his long-time critic. There is no love lost between these two, but there could soon be a defamation action.
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