Donald Trump’s Failed Attempt to Shield His Social Media Attacks From Libel Claims Of E. Jean Carroll Based on Section 74 of the New York Civil Rights Law

This article discusses Section 74 of the New York Civil Rights Law, which provides “absolute” protection against a claim of defamation arising from a “fair and true report of judicial proceedings,” even if the report is made outside the courthouse.  It also addresses the application of Section 74 to the ongoing legal disputes between E. Jean Carroll and Donald Trump, and lessons to be drawn from the associated proceedings.

On Tuesday, April 25, the New York Times published a detailed description of the allegations of plaintiff Carroll, a writer for Elle Magazine, in the civil lawsuit being tried this week in the Southern District of New York, that then-businessman Donald Trump raped her in a New York department store, Bergdorf Goodman, in the mid-1990s.  B. Weiser, “Amid Legal Onslaught, Trump Faces a Suit Accusing Him of Rape,” N.Y. Times, April 25, 2023, at A13.  In filing her claims based on the rape, Ms. Carroll relied upon a newly-enacted New York law, the Adult Survivors Act (“ASA”), which lifted the statute of limitations for civil claims of rape.  In this lawsuit, Ms. Carroll also asserts common law libel claims based on Mr. Trump’s public denial of the rape charges in October 2022.  In a previously filed lawsuit, Ms. Carroll had sued Mr. Trump for libel based on his public comments after she went public with the rape allegation in 2019.  (The two lawsuits are referred to, in order of their filing, as “Carroll I” and “Carroll II.”  For various procedural reasons, the second of the two lawsuits, Carroll II, was scheduled to be tried first.)

In making this April 25 report of Ms. Carroll’s pretrial allegations, the Times might have opened itself up to claims by Mr. Trump that the report of the rape was inaccurate and that the Times, in publishing the allegations, is liable for defamation.  However, the Times would be protected from such a suit in New York by Section 74, which, as discussed in more detail below, provides “absolute” protection against a claim of defamation arising from a “fair and true report of judicial proceedings,” even if the report is made outside the courthouse.

Ironically, perhaps, Mr. Trump himself seeks to rely on Section 74 as a defense to defamation claims brought against him as part of the later-filed “Carroll II.”  Prior to trial, Mr. Trump moved for summary judgment, claiming that he was entitled to an absolute privilege under Section 74 for his October 12 statement, supposedly because they were a full and fair report of the prior proceedings in Carroll I.  On March 28, 2023, Judge Lewis Kaplan denied that motion.  Carroll v. Trump, No. 22-CV-10016, 2023 WL 2669790, at *1–9 (S.D.N.Y. Mar. 28, 2023).

Judge Kaplan’s opinion describes in detail the basis for the libel claims in Carroll II.  On August 8, 2022, more than three months before the effective date of the ASA, Ms. Carroll’s counsel announced privately to her adversaries and to the Court that in addition to the charges of Ms. Carroll would sue Mr. Trump for damages for the alleged rape itself, as distinguished from the allegedly defamatory statements of June 2019, once the ASA became effective on November 24, 2022. That announcement was filed publicly on September 20, 2022.

On the morning of October 12, 2022, Judge Kaplan made a series of negative rulings in Carol I which pushed Mr. Trump into one of his social media tirades.  Mr. Trump stated, among other things:  (a) “This ‘Ms. Bergdorf Goodman case’ is a complete con job, and our legal system in this Country, but especially in New York State (just look at Peekaboo [Attorney General Leticia] James), is a broken disgrace….;” (b) “I don’t know this woman [Ms. Carroll], have no idea who she is, other than it seems she got a picture of me many years ago, with her husband, shaking my hand on a reception line at a celebrity charity event. She completely made up a story that I met her at the doors of this crowded New York City Department Store and, within minutes, ‘swooned’ her….;” and (c) “It is a Hoax and a lie, just like all the other Hoaxes that have been played on me for the past seven years. And, while I am not supposed to say it, I will. This woman is not my type! She has no idea what day, what week, what month, what year, or what decade this so-called ‘event’ supposedly took place. The reason she doesn’t know is that it never happened, and she doesn’t want to get caught up with details or facts that can be proven wrong….” and (d) “In the meantime, and for the record, E. Jean Carroll is not telling the truth, is a woman who I had nothing to do with, didn’t know, and would have no interest in knowing her if I ever had the chance.”  It is these and similar statements (on such topics as CNN and its journalist Anderson Cooper, and Ms. Carroll’s counsel) on October 12 on which Ms. Carroll based her libel claims in Carroll II.

Mr. Trump sought to dismiss Ms. Carroll’s libel claims in Carroll II on the basis of Section 74’s litigation privilege.  Section 74 in the pertinent part provides that “[a] civil action cannot be maintained against any person…for the publication of a fair and true report of any judicial proceeding….”  As Judge Kaplan noted:  “The purpose of providing immunity to fair and true reports of judicial proceedings is “to encourage the dissemination of information concerning the judicial branch of government and thereby to serve the public interest ‘in having proceedings of courts of justice public, not secret, for the greater security thus given for the proper administration of justice.’ ” 2023 WL 2669790, at *5 (citations and some quotations omitted).  The law is not limited in scope to the press but instead “extends to any person, firm or corporation.”  Id. (citations and some quotations omitted).

Judge Kaplan denied Mr. Trump’s motion for partial summary judgment, holding that a juror could find that Mr. Trump’s October 12 statement is not a “report of any judicial proceeding.”  The law, as summarized by Judge Kaplan, is that a report qualifies for the fair report privilege if “‘the ordinary viewer or reader’ can ‘determine from the publication itself that the publication is reporting on [a judicial] proceeding.’ ” Id. at 6 (citations and some quotations omitted). “In other words, ‘[i]f the context in which the statement [is] made make[s] it impossible for the ordinary viewer [or reader] to determine whether [the publication] was reporting on a judicial proceeding, the absolute privilege does not apply.’ ” Id. (citations and some quotations omitted).

Judge Kaplan found that nothing about the content or context of Mr. Trump’s statement made it a “report” of a judicial proceeding.  Instead, it is an “amalgamation of Mr. Trump’s personal views and comments on a wide range of subjects, including the legal system of the United States and of New York, this Court, Ms. Carroll and her rape accusation against him, CNN, and its journalist Anderson Cooper, and Ms. Carroll’s counsel.”   Id. (citations and some quotations omitted).

Next, Judge Kaplan found as well that Mr. Trump has failed to establish as a matter of law that his statement is a “fair and true” report of a judicial proceeding.  He summarized the law as follows:  “A report may be considered ‘fair and true’ under Section 74 if its substance is substantially accurate… A report cannot be said to be ‘substantially accurate,’ however if it would have a ‘different effect’ on the mind of the recipient than the ‘actual truth.’ In other words, Section 74 does not afford protection if the specific statements at issue, considered in their context, ‘suggest[ ] more serious conduct than that actually suggested in the official proceeding.’ ” Id. at 7 (citations and some quotations omitted).  Judge Kaplan held that Mr. Trump’s comments about Ms. Carroll in his October 12 statement, by contrast, state much more than the bare denial which constituted the proceedings in Carroll I.  On this basis, Judge Kaplan denied the pretrial motion, while noting that his decision did not decide the ultimate issue of whether Mr. Trump’s statement is or is not a “fair and true” report of a judicial proceeding as a matter of law—but strongly suggesting that he might make such a finding at some future time rather than to leave the issue to a jury.

Thus, this decision is a cautionary tale.  Counsel or parties in the throes of litigation might feel confident that they may freely refer to reports of legal proceeding outside the courthouse, to the press, or otherwise.  In fact, under Section 74, they must exercise restraint, strictly limiting their commentary to what actually transpired in court or in filed pleadings.


This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Mark Moore who counsels clients on employment disputes, disputes in a university setting, securities matters, intellectual property issues, and other commercial matters. Mr. Moore is admitted to practice law in New York, the United States Courts of Appeal for the Second and Third Circuits and the United States District Courts for the Southern and Eastern Districts of New York.