Why ABC settled a case they knew they would win — and why the Lincoln Project didn't
Sabrina Haake
December 21, 2024
Sabrina Haake
December 21, 2024
RAW STORY
Rick Wilson - MSNBC screenshot
Since 2012, the U.S. Dept. of Justice has defined rape as bodily “penetration, no matter how slight… with any body part or object… without the consent of the victim.” To be redundant, no penis is required.
On May 9, 2023, a New York jury determined that Donald Trump had shoved his unwelcome fingers inside E. Jean Carroll’s genitals, after he pushed her against a Bergdorf Goodman dressing room wall, and that he later defamed her. Trump’s ‘what’s a little groping among friends’ defense argued that $5m in damages was excessive because the jury didn’t say Trump raped Carroll, only that he sexually assaulted her.Trump’s claim led presiding U.S. District Judge Lewis Kaplan to clarify in a memorandum that, in legal parlance, inserting anything into a woman’s vagina against her will, including Trump’s nasty fingers, was, indeed, rape:
The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape…’ Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.
ABC settled a case they knew they would win
Months after Kaplan’s clarification of the jury’s finding, ABC News anchor George Stephanopoulos said on the air that Trump was found liable for rape. Because Trump relies on frivolous lawsuits to silence his critics and uses protracted and unethical litigation as his bullwhip, he sued ABC for defamation.
Given Kaplan’s clarification that the jury found Trump had legally raped Carroll, Stephanopoulos’s on-air statement was judgement proof. And yet, to protect separate corporate interests of its parent company, Disney, ABC News decided to ‘settle’ the case, pay Trump $15m, and officially apologize for telling the truth.
Under controlling jurisprudence on the free press, Times v. Sullivan, Trump had no chance of winning the case because he would have to prove Stephanopoulos spoke with reckless disregard of the truth, a finding blocked by the presiding judge’s clarification of ‘rape.’ ABC’s decision to pay Trump and apologize nonetheless is an Orwellian warning that, when covering an ascendent fascist, up will be down and down will be up, and only Trump can decide which is which.
The Lincoln Project shows us how it’s done
ABC’s capitulation is a study in contrast with another 1st Amendment case from last week. In Flynn v. Wilson, right wing provocateur Mike Flynn sued Rick Wilson, one of the founders of the Lincoln Project, a group of republicans committed to fighting Trump’s criminality.
For context, Flynn was Trump’s former national security advisor who championed using the military to overthrow the federal government after Biden won in 2020. Flynn also admitted he lied to the FBI about communications with Russia in order to protect Trump, a performative ‘admission’ since the FBI already had him on a wiretap doing what he claimed he hadn’t.
Following Flynn’s dalliance with Putin, Wilson referred to him on X as "Putin employee Mike Flynn," retweeting separately that, "FYI, Mike Flynn is Q." In Wilson’s book, “Everything Trump Touches Dies: A Republican Strategist Gets Real About the Worst President Ever,” Wilson wrote that “Flynn, a disgraced former army general was so outrageously in bed with the Russians that even Trump was forced to fire him.”
Taking a page out of Trump’s lawfare book, Flynn sued Wilson for defamation. Flynn argued that although he’d been paid for speaking at a Russian RT event, it wasn’t legally the same thing as being “a Putin employee” (just like rape isn’t the same as sexual assault). Flynn also argued that there was a difference between being "Q" and marketing products and conspiracy theories associated with Q, which Flynn could hardly deny. Wilson moved for summary judgment, arguing that his tweets were protected opinion and that Flynn could not prove he acted with "actual malice.”
Last week the Florida Court of Appeals agreed with Wilson and affirmed the lower court’s dismissal. Citing N.Y. Times Co. v. Sullivan, the appellate court found “no error in the trial court's determinations that Flynn's lawsuit against Wilson lacked merit and that it was brought "primarily" because of Wilson's exercise of his First Amendment rights.” Whether Flynn was a Putin employee or, in fact, embodied “Q,” was splitting hairs as to the overall message Wilson was conveying: that Trump’s own national security advisor was a moron who supported Russian interests over the U.S.
Journalists worried about Trump’s vexatious litigation should tape the appellate court’s conclusion to their refrigerators for courage: “We (have) a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks… Like it or not, such attacks are a characteristic feature of our democracy… Wilson's tweets may not have been polite, and they may not have been fair. But the First Amendment required neither, and so we affirm.”
Corporate elites are digging their own graves
In Trump v. ABC, the president of ABC News was no doubt opposed to caving to Trump on his specious claim. But ABC News has a bigger boss: the Disney corporation. Bob Iger, the $31 million a year CEO of Disney, calculated that making nice with an unhinged president was in Disney’s long term corporate interests, free speech be damned.
ABC’s capitulation reflects a chilling pattern among corporate-owned media outlets: Meta’s Mark Zuckerberg, OpenAI’s Sam Altman, Washington Post’s Jeff Bezosand Time magazine’s Mark Benioff have all similarly and prematurely capitulated to Trump. L.A. Times’ Patrick Soon-Shiong groveled even lower, killing an editorial criticizing Trump’s clown-car cabinet picks. Soon-Shiong has now officially limited the L.A. Times’ criticism of Trump.
Each of these CEOs acted to subordinate the 1st Amendment- and thereby democracy itself- to the bottom line of their other corporate concerns. For Bezos, it’s Amazon and Blue Origin, a federal NASA contractor. For Soon-Shiong, it’s for-profit healthcare corporation NantWorks, involved with federal vaccine distribution. For Benioff, it’s Salesforce’s lucrative contracts with the U.S. Customs and Border Patrol, while Altman’s Open AI is positioned to become a major contractor with the Pentagon.
These corporate tycoons, prematurely capitulating on free speech to protect their unrelated corporate interests, have demonstrated the perils of for-profit legacy media. Doing so, they have all but guaranteed that Trump will attempt to imprison his media critics. They need a reminder of their own, taped to their sub-zero refrigerators, from the BBC’s History Magazine:
Many members of (Germany’s corporate elites) thought Hitler was going to be the useful idiot who was going to play their games… they wanted to ride the Nazi movement like a horse.. They would use the momentum and the political potential of the Nazi party (to advance their corporate interests) but still keep it at bay… Within three or four months, they discovered that they were the horse and that Hitler was the horseman.
Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. She writes the free Substack, The Haake Take.
Rick Wilson - MSNBC screenshot
Since 2012, the U.S. Dept. of Justice has defined rape as bodily “penetration, no matter how slight… with any body part or object… without the consent of the victim.” To be redundant, no penis is required.
On May 9, 2023, a New York jury determined that Donald Trump had shoved his unwelcome fingers inside E. Jean Carroll’s genitals, after he pushed her against a Bergdorf Goodman dressing room wall, and that he later defamed her. Trump’s ‘what’s a little groping among friends’ defense argued that $5m in damages was excessive because the jury didn’t say Trump raped Carroll, only that he sexually assaulted her.Trump’s claim led presiding U.S. District Judge Lewis Kaplan to clarify in a memorandum that, in legal parlance, inserting anything into a woman’s vagina against her will, including Trump’s nasty fingers, was, indeed, rape:
The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape…’ Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.
ABC settled a case they knew they would win
Months after Kaplan’s clarification of the jury’s finding, ABC News anchor George Stephanopoulos said on the air that Trump was found liable for rape. Because Trump relies on frivolous lawsuits to silence his critics and uses protracted and unethical litigation as his bullwhip, he sued ABC for defamation.
Given Kaplan’s clarification that the jury found Trump had legally raped Carroll, Stephanopoulos’s on-air statement was judgement proof. And yet, to protect separate corporate interests of its parent company, Disney, ABC News decided to ‘settle’ the case, pay Trump $15m, and officially apologize for telling the truth.
Under controlling jurisprudence on the free press, Times v. Sullivan, Trump had no chance of winning the case because he would have to prove Stephanopoulos spoke with reckless disregard of the truth, a finding blocked by the presiding judge’s clarification of ‘rape.’ ABC’s decision to pay Trump and apologize nonetheless is an Orwellian warning that, when covering an ascendent fascist, up will be down and down will be up, and only Trump can decide which is which.
The Lincoln Project shows us how it’s done
ABC’s capitulation is a study in contrast with another 1st Amendment case from last week. In Flynn v. Wilson, right wing provocateur Mike Flynn sued Rick Wilson, one of the founders of the Lincoln Project, a group of republicans committed to fighting Trump’s criminality.
For context, Flynn was Trump’s former national security advisor who championed using the military to overthrow the federal government after Biden won in 2020. Flynn also admitted he lied to the FBI about communications with Russia in order to protect Trump, a performative ‘admission’ since the FBI already had him on a wiretap doing what he claimed he hadn’t.
Following Flynn’s dalliance with Putin, Wilson referred to him on X as "Putin employee Mike Flynn," retweeting separately that, "FYI, Mike Flynn is Q." In Wilson’s book, “Everything Trump Touches Dies: A Republican Strategist Gets Real About the Worst President Ever,” Wilson wrote that “Flynn, a disgraced former army general was so outrageously in bed with the Russians that even Trump was forced to fire him.”
Taking a page out of Trump’s lawfare book, Flynn sued Wilson for defamation. Flynn argued that although he’d been paid for speaking at a Russian RT event, it wasn’t legally the same thing as being “a Putin employee” (just like rape isn’t the same as sexual assault). Flynn also argued that there was a difference between being "Q" and marketing products and conspiracy theories associated with Q, which Flynn could hardly deny. Wilson moved for summary judgment, arguing that his tweets were protected opinion and that Flynn could not prove he acted with "actual malice.”
Last week the Florida Court of Appeals agreed with Wilson and affirmed the lower court’s dismissal. Citing N.Y. Times Co. v. Sullivan, the appellate court found “no error in the trial court's determinations that Flynn's lawsuit against Wilson lacked merit and that it was brought "primarily" because of Wilson's exercise of his First Amendment rights.” Whether Flynn was a Putin employee or, in fact, embodied “Q,” was splitting hairs as to the overall message Wilson was conveying: that Trump’s own national security advisor was a moron who supported Russian interests over the U.S.
Journalists worried about Trump’s vexatious litigation should tape the appellate court’s conclusion to their refrigerators for courage: “We (have) a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks… Like it or not, such attacks are a characteristic feature of our democracy… Wilson's tweets may not have been polite, and they may not have been fair. But the First Amendment required neither, and so we affirm.”
Corporate elites are digging their own graves
In Trump v. ABC, the president of ABC News was no doubt opposed to caving to Trump on his specious claim. But ABC News has a bigger boss: the Disney corporation. Bob Iger, the $31 million a year CEO of Disney, calculated that making nice with an unhinged president was in Disney’s long term corporate interests, free speech be damned.
ABC’s capitulation reflects a chilling pattern among corporate-owned media outlets: Meta’s Mark Zuckerberg, OpenAI’s Sam Altman, Washington Post’s Jeff Bezosand Time magazine’s Mark Benioff have all similarly and prematurely capitulated to Trump. L.A. Times’ Patrick Soon-Shiong groveled even lower, killing an editorial criticizing Trump’s clown-car cabinet picks. Soon-Shiong has now officially limited the L.A. Times’ criticism of Trump.
Each of these CEOs acted to subordinate the 1st Amendment- and thereby democracy itself- to the bottom line of their other corporate concerns. For Bezos, it’s Amazon and Blue Origin, a federal NASA contractor. For Soon-Shiong, it’s for-profit healthcare corporation NantWorks, involved with federal vaccine distribution. For Benioff, it’s Salesforce’s lucrative contracts with the U.S. Customs and Border Patrol, while Altman’s Open AI is positioned to become a major contractor with the Pentagon.
These corporate tycoons, prematurely capitulating on free speech to protect their unrelated corporate interests, have demonstrated the perils of for-profit legacy media. Doing so, they have all but guaranteed that Trump will attempt to imprison his media critics. They need a reminder of their own, taped to their sub-zero refrigerators, from the BBC’s History Magazine:
Many members of (Germany’s corporate elites) thought Hitler was going to be the useful idiot who was going to play their games… they wanted to ride the Nazi movement like a horse.. They would use the momentum and the political potential of the Nazi party (to advance their corporate interests) but still keep it at bay… Within three or four months, they discovered that they were the horse and that Hitler was the horseman.
Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. She writes the free Substack, The Haake Take.
John Stoehr
December 19, 2024
ALTERNET
On Friday, ABC News settled a lawsuit brought by Donald Trump over statements made on air by anchor George Stephanopoulos.
These statements were true. Stephanopoulos said Trump had been found civilly liable for rape. The judge in the case said so. Trump didn’t like Stephanopoulos telling the truth. He sued him and his employer.
And they caved.
ABC News and Stephanopoulos are going to give $15 million to Trump’s presidential library, wherever and wherever that will be built. They also plan to issue an apology on air for speaking truthfully about Trump.
This is a BFD, though it may not seem that way.
In libel law, the truth is the best defense. You can’t defame someone, legally speaking, if what you’re saying is true. You can’t be held liable for injury to their reputation. This is not to mention the impossibility of injuring the reputation of a public figure like Trump, who just won an election. Stephanopoulos could have accused him of having unlawful carnal knowledge of pigs. It would not have injured him.
So ABC News almost certainly would have won on the merits, if the case got beyond a judge’s dismissal. But Disney, its corporate owner, apparently saw advantage for itself by giving in to Trump’s bullying.
Good news for ABC News, maybe, but not for other media groups and individuals who trade in facts. This settlement will bode poorly for reporters who displease Trump. It suggests that he will be emboldened to sue them into silence. (Indeed, Yesterday, he said he would sue Iowa pollster Ann Selzer for being wrong in her final 2024 poll. This morning he filed suit.) The ABC settlement also suggests that employers will betray reporters if betrayal is politically expedient. Stephanopoulos spoke truthfully, but his bosses now side with Trump against him.
Moreover, the settlement makes our illiberal information climate worst. The Washington press corps is already captive to the rightwing media apparatus. That is, it already outsources its agenda-setting power to it. Politics stories are now frequently framed by nonpartisan editors according to terms preferential to Trump and the GOP. You don’t need to be a rabid follower of Steve Bannon to be ignorant of the good that’s done by the Democrats. All you need to do is read Politico.
The already corrupt state of our information climate might not be so terrible if the Democratic Party had its own media apparatus with which to complete with Trump’s for the attention of voters and the press, but it does not. As Matthew Sheffield told me in the interview below, there is, as of right now, no funding for anything remotely close to the size, scope and power of the rightwing media apparatus.
Things were bad before the ABC News story broke. The Democrats have no counter to the rightwing media apparatus, and to the otherwise neutral observers in the press corps who are attuned to it.
Things are worse now. The press corps might be corrupt but at least it would report bad news about Trump. Now, with Trump in a position to litigate them into silence (or harass them with threats of criminal prosecution), the Democrats might soon not have even that.
JS: Since the election, I have been saying the true axis in politics is not liberal-conservative. It is not left-right. It is true-false. People who understood the facts tended to vote for Kamala Harris. People who believed lies tended to vote for Trump. This is due to the power of what I call the rightwing media apparatus. Am I wrong? If so, how so?
MS: I think that's correct. It didn’t start that way, that the left-right divide was predominantly about true and false, but it became that way after the Republican Party was taken over by the virulently anti-government reactionaries who voted in Barry Goldwater in 1964.
Since then, they have grown their ranks by introducing new false beliefs. It began with people who thought that the government was always evil and could never help people (Ronald Reagan's formulation that "government is the problem, not the solution"). They expanded that to the idea that biology was a lie promulgated by evil secular humanists. Then, under Trump, they expanded that to include attacks on sound public health measures, like fluoride in water and vaccines.
Oftentimes, whether someone has college education is used as an ersatz measure of how Trumpy they are, but that’s not the real divide.
It's about cognition. The objective evidence is that people with lower cognitive skills tend to be socially conservative or tend to be in the unaligned middle where facts are few and far between.
Ultimately, democracy requires an informed citizenry that understands how to think properly. This is why the right attacks public education so vehemently. They need ignorance in order to win, as I discussed on a recent episode of my Theory of Changepodcast.
JS: You call it the Republican ecosystem. I think a lot of liberal-lefty types think of it as a cop out, as in: Harris lost because she was a bad candidate. Don't blame the media. But I don't think many understand how large the ecosystem is -- how it can and did make the difference in this election. Can you explain to how media trumped policy?
MS: Dedicated followers of politics, and even many who work in it, oftentimes become invested in the candidates themselves.
But ultimately, political systems matter more than candidates.
What Trump or Harris say they'll do is important, but millions of people do not pay much, if any, attention to the specific policy declarations. They may not even know who is running. Right before the election, Google searches for "did Biden drop out" spiked. Millions of Americans who were able to vote had no idea that President Biden was not even on the ballot. It's astonishingly, and depressingly, true.
Just as another example of what I'm talking about: during the 2016 race, 41 percent of adults were unable to give the names of Mike Pence and Tim Kaine as the running mates of Trump and Hillary Clinton.
This is the level of ignorance that we're up against.
And it gets worse.
According to a post-2024 election survey, 45 percent of swing voters (ie, people who were open to voting for Trump or Harris) said they got their news from social media. The number was even higher, 52 percent, among people who had voted for Trump for the first time ever. By contrast, only 39 percent of swing voters watched local news and just 15 percent said they read national newspapers like the Times.
JS: Do the Democrats take ignorance seriously enough?
MS: Ignorance is ultimately fatal to democracy, because in a democratic society, the responsibility of governance rests upon the shoulders of the public. If the public does not know the difference between what is true or false, then it will make bad decisions.
Authoritarians who want to repeal democracy and pluralism can only do so through manipulating people. For decades, people on the center-to-left have generally outsourced educating the population to K-12 schools and public universities. But learning is something that takes place throughout our lifetimes, whether we realize it or not.
And so people who want to have economic and social justice need to educate the public about our viewpoints through all kinds of media (websites, podcasts, videos, memes, etc) and also through local organizations like service clubs and unions.
Our society has lost "third spaces" where we can come together and learn from each other, and more especially to partake in our community's collective memory. Without real progressive infrastructure, we are leaving people to be manipulated by authoritarian religion and deceptive media outlets like Fox.
Research has shown that people who are most likely to get sucked into authoritarian cults like QAnon and hardcore Trumpism are alone and isolated. Many of them gravitate toward the only people who are there. The same thing often happens with young people and gangs.
JS: What are the Democrats doing wrong? It seems to me they have no answer. Just hope that Trump, now that he has power, will implode.
MS: As of this moment, there are no funded political ecosystem projects. This absolutely must change as soon as possible.
As someone who has seen both sides of the political spectrum from the inside, it was a complete shock to me when I moved leftward that there was nothing to offset the massive rightwing media machine, which I helped build (for more about why I left the right, see this link.
There have been some encouraging signs recently, however.
Greg Sargent interviewed three candidates for chair of the Democratic National Committee. Ben Wikler, who is currently chair of the Wisconsin Democratic Party, made a very encouraging remark: “It’s the people least likely to seek out information about either party who we lost in this election. They’re generally younger, more working class.”
For the party, Wikler said, “solving the information problem has to be a core focus,” requiring a “constant effort to get out of our heads and into the minds of the extraordinarily diverse electorate that is getting information from a dizzying array of places.”
Minnesota Chair Ken Martin and former Maryland Governor Martin O’Malley also made important remarks about Democrats' ecosystem disadvantage. I encourage people to check out Sargent’s column.
Ken Martin made an especially important remark also about how Democrats have become addicted to ineffective television ads that have zero lasting impact. And they take away money from the thousands of center-left commentators who would love nothing more than to be paid to advocate against the Republican Party's extremism and for a shared future where everyone has a chance.
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