Libel Doth Seldom Prosper; What's The Reason?

Trump summoned author to Mar-A-Lago and threatened him over book's claim that he praised Hitler: report https://t.co/NMj8nGOXCu

— Raw Story (@RawStory) July 14, 2021

 This is based on my memory of the law I learned in school some 40 years ago, now.  But I wanted to put out a sort of general explainer.

Start with damages:  there two basic kinds.  One is actual damages; this is the loss you can establish by an accounting or an assessment of the exent of your loss.  Let me give an example from my experience.

A man owned equipment which he used to make styrofoam cups and other items of a similiar nature.  This equipment used a lot of water, and produced a lot of steam.  That steam eventually (and rather quickly, actually) corroded the metal structure where his equipment was housed, causing the building to collapse, destroying his equipment.  He sued several entities, and made claims of damages based on his loss.

The lawyer I worked with took him painstakingly through every item lost, down to the paperclips.  The business owner had demanded a large number, a number far in excess of the value of everything in the building, as compensation. His assessment of his damages was in the nature of “Hellifikno, but it looks good on paper!” He couldn't (and didn't) get damages based on that assessment because his actual damages, the ones he could prove and verify, were far smaller than the damages he claimed he needed to recover in order to be "made whole."

The lesson is, the courts will make the injured party whole; but they won't make him rich.  To get rich, you need punitive damages, or damages for inchoate losses, like loss of consortium (you can't sleep with your spouse, or didn't for a long time) or loss of community, or just mental anguish (a/k/a "pain and suffering").  Such damages sometimes come from personal injury cases, and those make the headlines.  In the now-forgotten but once infamous McDonald's coffee case, the injured woman sued because the hot cup of coffee she got at the McDonald's window spilled and burned her legs.  But she received third degree burns, and it was revealed McDonald's superheated the coffee at brewing in order to maximize the amount of coffee they got from the grounds (least amount of grounds per maximum amount of product, achieved by superheating the water).  That information, essentially, led to the jury punishing McDonald's for such actions with punitive damages.  Those are the damages you hear about, when you think somebody gets rich from a lawsuit.

Why am I telling you this?  Because a slander/libel suit, at least at common law (and I think most state statutes follow the common law on this), allow only for recovery of actual damages.  And because of the other thing about punitive damages:  you can't get punitive damages, if you can't recover actual damages.  If the woman with the hot cup of coffee and only been mildly warmed, rather than seriously burned (do you want third-degree burns on your thighs while sitting in a car with the seatbelt fastened?), she might still have had a case against McDonald's for their greed.  But she'd never have gotten any actual damages, and so never have gotten the headline-grabbing punitive damages.  Without the one, you can't get to the other.

So examine that tort a moment:  third-degree burns are easy to prove, and in that case the cause was easy to prove, too.  Hospital bills alone are going to be high, along with physical therapy and a lengthy recovery (especially if you are old and don't heal as fast as a young person.  Another legal dictum plays in here:  you take the victim as they are.  I've no doubt the victim's age played into the jury's decisions on damages.).  There's physical damage, and it's easy to identify its cost, at least in medical bills (sorry, but sometimes that's the unit of measure). That's how actual damages are calculated.  Any additional damages, such as for pain and suffering, or even punitive damages, can only be assessed on the basis of actual damages.  If those are found to be quite small, but the jury wants to award large punitive damages, the courts will usually lower those damages to be a reflection of the actual damages.  Again, the courts aren't in the business of making you rich by redistributing the wealth.

Now turn to another tort: libel.  Libel requires the establishing of actual damages.  You can't sue for libel because you feel insulted, or you have hurt feelings, or you don't like being shamed in public.  You have to establish actual damages.  You have to show you suffered actual monetary loss as a direct result of the libel.  That is, you lost business, you lost business opportunities, your loans were called due preemptorily: something like that.  Next question:  how do you do that?

With great difficulty.  Remember, you have to establish a direct connection between the alleged libel and your financial losses.  And were your losses because of the libel, or coincidental to it?  Aye, there's a fine and expensive legal fight.  And your actual damages don't include the legal fees you have to spend to prosecute your claim.  Some state statues might let you recover those, but the court may not allow the full legal invoices you present.  Besides, you have to pay those fees and hope for recovery of them later.

Which raises the second difficulty of libel:  you probably aren't going to get a lawyer to take this case on contingency.  Lawyers do that for cases where the recovery is much more certain, and the damages much easier to establish.  The less time lawyers spend on cases, they more per hour they make on contingent fees; and establishing damages in libel can take A LOT of hours.  It's also, as I said, very hard to establish.  Much easier to establish injuries arising from third-degree burns to the thighs. No, lawyers generally want that paid for up front and regularly for a libel case.  Which means libel suits are not the province of the poor and downtrodden, or lightly engaged in even if you do have the money to spend.

Libel suits, traditionally (going back to England traditionally, I mean, where most of our common law now statutes came from), were the province of the peerage.  They had the money to hire lawyers, and could spend it proving the damages against them were more than hurt feelings (injuries to the peerage were injuries to the Crown; or at least to the system of privilege that had to work constantly to protect its privilege.  Proving injury is easier when you're highly privileged.).  Most of us can't front the expense of proving actual damages; and the chance of recovery from a wealthy defendant is pretty slim, especially if that defendant can appeal and postpone final judgment for years.  By the time you do recover, if you do recover, you'll have spent it all on attorney's fees, and have a new appreciation for the case of Jarndyce v. Jarndyce.

And what did you accomplish?  Probably nothing.  FoxNews and Newsmax are afraid of Trump's "Big Lie" because slander suits were filed against them; but those suits were filed by corporations with deep pockets fighting for their corporate existence and likely to recover far more than they spent on attorneys.  That's why Fox and Newsmax settled their cases.  The corporations could also show actual damages, actual injury to their business (lost or canceled orders, etc.); not just some momentary disrepute that may, or may not, force them out of business entirely sometime in the future.

So, appropriate to the tweet, could Trump sue Bender?  Probably not under Sullivan.  Yes, some justices on the Supreme Court are making noises about repealing NYT v Sullivan.  No, it won't bring about a sea-change in the world.  Some well-heeled politicians (Ted Cruz comes to mind) might file a slander suit or two, because they don't like the coverage they get.  But unless they can show actual damages (not just "People don't think much of me anymore."  Sorry, Ted, they never did.), they still won't get very far.  Assume they did repeal Sullivan, though:  is Bender exposed?

Probably not.  Trump still has to prove actual damages.  Saying you admire Hitler might offend sensible poeple (it should!), but I don't think it rises to the level of libel per se (it's not as if he accused Trump of praising pedophilia.  Even speaking approvingly of Jeffrey Epstein wouldn't cross that boundary. Besides, Douglas Brinkley thinks Trump is stupid enough to consider Hitler "just another celebrity."  That would actually be a fairly decent part of a defense on Brewer's part; who wouldn't believe it?).  So all I said above still holds:  the rewards would not be great enough to venture the process.  Besides, Bender has a publisher to defend him.

Despite that it should be remembered the NYT still keeps lawyers on retainer to be sure their exposure to suits is at a minimum.  I won't weep for them if that exposure goes up by a small degree.

It'll still be the elephants fighting.  The rest of us will still be the grass that's getting trampled.