I must admit that, when George Stephanopoulos repeatedly referred to then former President Donald Trump as a rapist, I grimaced. I thought to myself, “ABC, get out your checkbook.” It’s been widely reported that ABC (the Walt Disney Company is the parent company) has agreed to pay 15 million to a Trump foundation and museum. In addition, ABC committed to issuing an apology, and paying Trump’s attorneys’ fees in the amount of 1 million dollars. What was Stephanopoulos thinking?

The defamation suit was filed by Trump in a Florida Federal court after Stephanopoulos repeatedly claimed that Trump was found liable for rape during an interview of Rep. Nancy Mace, R-S.C., on the ABC network. Rep. Mace has openly discussed being the victim of rape in her teenage years. Arguing that certain statements Stephanopoulos made were “false and defamatory,” the settlement quickly ensued after both Trump and Stephanopoulos were ordered to sit for depositions.

Lawdictionary.org defines defamation as “[t]he taking from one’s reputation. The offense of injuring a person’s character, fame, or reputation by false and malicious statements. The term seems to be comprehensive of both libel and slander.” Libel pertains to written defamation, whereas slander is verbal defamation. There is an enormous body of caselaw (judicial decisions), law review articles, and commentary related to defamation law.

The landmark Supreme Court case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) restricts public officials from suing for defamation. Not only must a public official prove the essential elements of defamation, but they must also prove that the statements were made with actual malice. The essential elements of a defamation claim include publication of a false, defamatory statement to a third party, the defendant acted negligently or with actual malice, and the statement caused some type of damage – reputational harm, lost future opportunities or severe emotional distress necessitating medical intervention.

The Supreme Court in Sullivan crafted an actual malice standard when dealing with statements regarding public officials in an effort to protect the First Amendment freedom of speech, and curb suppression of political dissent or criticism. The actual malice prong is satisfied when a Plaintiff establishes that a statement is made with knowledge that it was false or with reckless disregard for whether it is true or not.

There are certain statements that are considered defamatory per se (intrinsically). Examples include false criminal accusations, claims that an individual has a communicable disease, adultery allegations, or professional misconduct. In my estimation, Stephanopoulos made the egregious error by stating that Donald Trump committed rape (slander per se). I don’t use the term “egregious” lightly. It was factually ascertainable that President Trump was not liable for committing rape as evidenced by the jury verdict in the matter of E. Jean Carroll. President Donald Trump was found civilly liable for sexual abuse. Disregard for the actual verdict by Stephanopoulos could easily satisfy Sullivan’s actual malice standard. What greatly confounds matters is that a U.S. District Court judge dismissed Trump’s defamation claims against E. Jean Carroll, because digital penetration in “modern common parlance” may well be considered rape. Nevertheless, producers at ABC warned Stephanopoulos not to use the word rape, creating a big problem for the network insofar as actual malice is concerned.

The Trump, E. Jean Carroll, and Stephanopoulos “affair” has left an indelible mark on defamation jurisprudence. Our media and judiciary have become remarkably polarizing with very discernible and distinct political agendas. What follows remains to be seen.

All journalists and writers should be wary of the legal and financial consequences with regards to slander, libel, and defamation because, yes, a public figure CAN sue for these offenses.

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JAMES M. WALSH, ESQ., is a former Navy JAGC officer and a recipient of the American Bar Association’s coveted LAMP Award for excellence in military legal assistance practice. A rolling stone, J.M. has globetrotted most of his adult life. After the military, J.M. pursued commercial real estate development, leasing, and asset management. He resides in Catania, Sicily. He spent almost twenty years in the Commonwealth of Pennsylvania’s Luzerne, Erie & Lackawanna Counties. His handiwork as an editor and author is interspersed throughout this novel. Leo A. Murray fondly refers to J.M. as his collaborative, literary ‘Coach’ or ‘Lieutenant.’ Agnes claims that he has gypsy in his heart and rabbit in his feet.