On Wednesday, the New York Times published a bombshell story profiling two women who say that Donald Trump touched them inappropriately. The report came out just two days after Trump, who was caught on tape bragging about committing sexual assault, insisted that he had never groped or harassed women. By Wednesday evening, Trump’s lawyer Marc E. Kasowitz had sent the New York Times a letter demanding that it retract the story and issue an apology. Kasowitz told the Times that if it did not comply, Trump might sue for libel.
On Thursday, New York Times lawyer David McCraw responded to Kasowitz’s letter with a defiant refusal. McCraw first explained that Trump could not seriously allege libel because nothing in the Times’ story harms his reputation more than Trump’s own words and actions:
The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a “piece of ass.” Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.
(That may not be strictly accurate—the Times piece is arguably damaging to his already damaged reputation—but it would be fun to see Trump’s lawyers contest it in court.)
McCraw went on to explain that Trump’s libel threat is ridiculous for another reason: It would violate the First Amendment, which vigorously protects speech on a matter of public concern.
[T]here is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance—indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the women’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern.
After schooling Trump and his attorneys on the First Amendment, McCraw invited a court challenge to prove that the Times story is legally protected:
If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.
A word of advice to Trump and his lawyers: A number of extraordinarily powerful people, including an actual president of the United States, have tried to censor the Times before. They lost. You will too.