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Danny Cevallos: For Melania Trump, the decision to sue these defendants is a business decision

In a post Hulk Hogan/Gawker world, a lawsuit is worth it, he says

Editor’s Note: Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN) —  

Melania Trump has filed suit against The Daily Mail and Tarpley, a US-based blog, alleging false and defamatory statements about her supposed involvement in an escort service.

Most citizens are surprised to learn that freedom of speech is not absolute. Some speech doesn’t receive First Amendment protection. Defamation is an example of unprotected speech.

Defamation is a false statement of fact that lowers the reputation of a person in the community or deters others from associating with her. Defamation encompasses two forms: libel (written) and slander (oral).

Defamation cases: Often threatened, rarely viable

Normally, defamation cases are the bane of lawyers’ existence. Every attorney has fielded a call from some distant relative or kooky friend who believes their life has been ruined because of what their Aunt Edna posted on Facebook. These are rarely viable defamation cases.

Danny Cevallos
Danny Cevallos

First, being called a doofus on social media, for most of us, doesn’t cause us any provable financial harm. Second, Aunt Edna — and everyone else who wastes their time insulting people on Twitter — doesn’t have any money. These are people who have too much free time on their hands to have a career or a savings account. These defendants don’t have any money that would interest a lawyer in taking the case on a contingent fee.

For a defamation case to be worth bringing, it has to involve people with a monetized image, who are disparaged by defendants with big bank accounts. Otherwise, it’s just not worth it. There are still plenty of defamation cases filed by regular folks; they’re just filed “pro se,” because no lawyer would take them.

For Melania Trump, the decision to go after these defendants is a business decision: The payout must be worth the risk and cost of a prolonged, public lawsuit. In the past, many public figures have concluded it’s not worth it.

But in a post Hulk Hogan/Gawker world, the analysis has changed. Now, a lawsuit is worth it. If you’re a powerful person, like Silicon Valley investor Peter Thiel, and you want to finance a takedown of a media outlet you perceive as an enemy, you can apparently invest in a plaintiff and his attorneys, and potentially destroy an entire news organization.

The lawyer who filed the suit on Trump’s behalf is Charles Harder, who also represented Hulk Hogan in his successful suit, in which a jury issued a $115 million verdict against Gawker.

Harder has estimated the damages suffered by Melania Trump amount to even more: $150 million. Before filing suit, Harder put the Daily Mail, Tarpley and other news organization on notice that the articles about her were defamatory.

And the Daily Mail quickly retracted its article, saying:

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“The point of the article was that these allegations could impact the US presidential election even if they are untrue. Mrs. Trump’s counsel in the US and the UK have stated unequivocally that the allegations about the modeling agencies are false.”

“To the extent that anything in the Daily Mail’s article was interpreted as stating or suggesting that Mrs. Trump worked as an ‘escort’ or in the ‘sex business,’ that she had a ‘composite or presentation card for the sex business,’ or that either of the modeling agencies referenced in the article were engaged in these businesses, it is hereby retracted, and the Daily Mail newspaper regrets any such misinterpretation,” the statement read.

Nevertheless, Harder told CNNMoney the lawsuit will move ahead despite the retraction.

Just republishing as a defense?

In reading the complaint, one may notice that the offending statements appear to quote other sources. But these defendants cannot simply counter that they were just publishing something someone else said. It is a well-settled principle that one is liable for republishing the defamatory statement of another. News organizations have strong monetary incentives to vet their sources. In this case, the defendants won’t be able to hide behind the fact that they were just relaying what someone else told them about Melania Trump.

Of course, truth is a defense to defamation cases, too. Because the statement has to be false, the defendants could win if they wanted to dig in and insist that everything they said about Melania Trump is true. But both defendants have already printed retractions to the offending material. It would be difficult for them to publicly reverse position and try to prove they are true now.