A threatening letter from a much-feared defamation lawyer to People magazine and one of its former writers, concerning an article she wrote alleging that Donald Trump made unwanted sexual advances towards her, has some media lawyers puzzled.
“I have seen many letters threatening legal action based on news reports,” wrote Theodore Boutrous, Jr., co-chair of litigation at Gibson, Dunn & Crutcher, in an email to Fortune, “and this has to rank as one of the weakest of all time.” (People is a sister publication of Fortune; both are published by Time Inc. I’ve never met Stoynoff or the People editors involved with her story.)
Boutrous also called the threat of legal action "empty and frivolous," and suggested that it could only have been filed to improperly intimidate news organizations from reporting on an important news story.
At the same time, one defamation scholar defended the letter as raising a "plausible" claim, and "well within the norms of responsible media law practice."
The letter on behalf of Melania Trump, first published by Politico, was sent last Thursday by Charles Harder, a Beverly Hills attorney who won a $140 million verdict in May against Gawker online gossip site on behalf of Hulk Hogan. That suit forced Gawker into bankruptcy, sale, and closure.
The most striking thing about Harder’s letter is what it doesn’t do. It doesn’t mention the crux of Stoynoff’s accusations at all. It doesn’t, for instance, take issue with her recollection that when she was interviewing Trump at his Mar-a-Lago estate in December 2005, while she was working on an article about the first anniversary of his marriage to Melania, he allegedly led her into an empty room under false pretenses, shut the door, pushed her up against a wall, kissed her aggressively, and predicted that they would have an affair—all while the pregnant Melania was momentarily upstairs, changing, during a pause in the joint interview.
(When Stoynoff’s article was published last Wednesday, People reported that a Trump spokeswoman asserted that the entire account "never happened" and was “fabricated.” On the campaign trail, Trump has also suggested that Stoynoff was not attractive enough to have allured him.)
Harder’s letter, however, only takes aim at the seemingly innocuous passages of Stoynoff’s article in which she described a friendly, chance encounter with Melania in front of Trump Tower on Fifth Avenue nearly a year after the alleged assault. As Stoynoff recalled it, Melania was then carrying baby Barron in her arms. She gave Stoynoff a hug, and asked her, “Natasha, why don’t we see you anymore?” Stoynoff responded that she’d missed Melania, and she squeezed baby Barron’s foot, she wrote.
Harder, who identifies himself in the letter as representing only Melania, alleges that this passage was “completely fictionalized,” that the encounter with Melania didn’t occur, that Melania and Stoynoff were “not friends . . . or even friendly,” and that Melania “would not have even recognized Ms. Stoynoff if they had encountered one another.” Harder demanded a retraction and indicated that the failure to issue one would require Melania “to consider her legal options”—though he didn’t say what those might be.
According to People editor Jess Cagle, neither the magazine nor Stoynoff has, so far, received any threat from any lawyer representing Donald Trump.
“It’s hard to see any legitimate basis or purpose for Mr. Harder’s letter,” wrote Boutrous. “There is nothing defamatory about that statement [about Melania] and the letter doesn’t even claim that it is. In fact, the statement (indeed, the whole article) portrays Mrs. Trump in a positive light and did not even arguably damage her reputation.” (Elsewhere in the article, Stoynoff, who said she had been assigned to the Trump beat for some time prior to the alleged incident, described Melania in her article as “kind and sweet during our many chats.”)
Vincent Blasi, a first amendment and civil liberties scholar at Columbia law school, said in an email that he was puzzled “why, of all the things published about Donald Trump in conjunction with his alleged groping, this seemingly friendly, cordial exchange with Melania should be singled out for a demand for retraction.”
“My best guess,” Blasi offered, “is that Trump's and/or Melania's lawyers have been told by Melania that she remembers no such incident, and they believe that Melania has much more credibility than Donald so that any kind of denial by Melania would discredit Stoynoff. Surely the content of the exchange is in no way defamatory of anyone.”
On the other hand, Rodney Smolla, a first amendment scholar and dean of the Delaware Law School at Widener University, defended Harder’s letter in an email to Fortune, arguing that if Melania can prove that the incident was fabricated, she might have a “plausible false-light invasion of privacy claim.” (Such a case can arise when someone is "unreasonably" presented to the public in a way that leaves a false impression, causing them emotional harm.)
Such a claim “can be predicated on falsehoods that do not damage reputation,” Smolla explained, “or even falsehoods that portray the plaintiff in a sympathetic light. The test is whether under the circumstances the allegedly false portrayal would be ‘highly offensive to a reasonable person.’
“On a human level,” Smolla continued, “one can easily understand how Melania Trump might be deeply offended by a fictionalized account of an encounter that depicted her as being friends with Stoynoff, who allegedly was the victim of a sexual assault by her husband, if in fact Melania Trump never had such an encounter with Stoynoff, never said the words attributed to her, and never was holding her child while Stoynoff affectionately squeezed his foot. Whether this ultimately would be enough to support an actual recovery or not would be a question for judges or jurors to decide if the matter were ever actually litigated.”
Boutrous, on the other hand, maintains that there is “no conceivable basis” for a false-light invasion of privacy claim based on these allegations. What Stoynoff wrote about Melania “does not come close to being “highly offensive to a reasonable person,” he said.
“This threat of legal action is especially empty and frivolous because Mrs. Trump is a public figure,” he continued. For that reason, he says, People is protected by constitutionally heightened protections against "any legal theory Mr. Harder could conjure up." It would face, for instance, a high standard of proof that it "knew that the statement was false or recklessly disregarded the truth, even though it had a first-hand account from an experienced and respected reporter."
"The sole purpose of the letter seems to be to intimidate People and other news organizations and journalists from engaging in rigorous reporting about Mr. Trump’s activities, which is not a proper purpose," he said.
Blasi acknowledged that he wasn’t an expert on false-light invasion of privacy claims. Nevertheless, he wrote, “I doubt whether even if the exchange outside Trump Tower never happened, saying that it did inflicts any kind of harm on Melania.”
In response to a request for comment, Harder wrote in an email: “I agree with what Dean Rod Smolla had to say. He writes the law school textbooks and legal treatises on defamation, and takes a balanced view. By contrast, partners at massive law firms like Gibson Dunn who do nothing but practice media company defense are virtually required to give you the defense bar perspective, and only that. They would probably lose clients if they said anything balanced or, heaven forbid, favorable to an individual who is the subject of a false story.”
Meanwhile, the Stoynoff story continues to develop. On Monday night, Melania Trump told CNN's Anderson Cooper that the accusations of all her husband's accusers were "lies."
Then, on Tuesday evening, People revealed the names and accounts of six named sources who corroborate Stoynoff's account, including a friend who says she was with Stoynoff when they met Melania on Fifth Ave. “They chatted in a friendly way,” that friend, Liza Herz, told People. “And what struck me most was that Melania was carrying a child and wearing heels.”
Addendum: After publication an attorney reader pointed out, and two other New York media attorneys have verified, that New York State—where People is published, Melania Trump has at least one of her homes, and where the disputed incident allegedly occurred—does not recognize "false-light invasion of privacy" suits. It is still conceivable, however, that her attorneys could claim that some other state's law should apply.