Trump May Want to Sue for Defamation, but Would He Win? By Dan Atkerson on March 23, 2016

As the presidential campaign season wears on, the candidates are starting to get a little (or a lot) nastier to one another. As it does every four years, the question of how far is too far when it comes to negative ads and commercials has inevitably arisen, this time in the form of a threatened lawsuit. Donald Trump has said that he wants to sue fellow Republican candidate Ted Cruz for defamation based on one of the ads that Cruz is currently running. So can Trump sue for defamation? And does he have any chance of actually winning that case?

Defamation Lawsuits: What You Need to Know

Defamation is sometimes a tricky thing to pin down, especially since freedom of speech is guaranteed to all as a constitutional right. The general definition is that defamation is any statement that harms the reputation of someone else. The statement has to be published in some way, which is extremely easy in our society of cell phone videos and tweets, and has to be seen by a third party. So far, Trump’s case seems to meet the requirements. Cruz did make statements about him, and they were published on televisions throughout South Carolina.

However, the next requirement in a defamation case is proving that the statement caused injury. Here is where things can get subjective. Generally you can prove injury in a defamation case if you can show that your income or business was negatively affected by a statement. If you are a veterinarian, for example, and someone falsely reports that you hate dogs, you might lose business. If so, you could prove that the person who said you hate dogs caused you injury if you can show a drop in revenue coinciding with the false statement.

As for Trump, he might be able to use his poll results to show that Cruz’s ad injured his campaign in South Carolina, if he can prove that he was going to do better than he did before the ad began to air. But with all of the angry ads and anti-everyone commercials running right now, he might be hard pressed to prove that it was just the one, specific ad from Cruz that changed his poll numbers.

The next step in a defamation case is proving falsity, and it is here that Trump’s case would probably fall apart. In order for a statement to actually be defamation, it has to be a lie. If it’s true, it’s true, and the person making a statement was just repeating a fact. Most of Cruz’s ad depicts a past interview with Trump where he expresses pro-choice views on abortion rights, which go against the Republican Party’s stance. But the problem for Trump’s case is this: he said those things and there is video evidence. Even if he isn’t pro-choice now, Cruz isn’t lying by saying he was once pro-choice.

The last element of a defamation case is a special provision for people who are public figures (and right now, both Trump and Cruz are). In these cases, the person filing the suit has to prove that the defamatory statement was said with “actual malice”, which means that it was said deliberately to injure that person’s reputation. Many might agree that all political ads seems to have an element of actual malice, but as long as they’re true, no one can sue for defamation.

Attorney Dan A. Atkerson has more than 30 years of experience representing Dallas area clients in discrimination and defamation case.