Opinion | On Donald Trump, E. Jean Carroll and the Limits of Libel Law

In the days since a New York jury ordered Donald Trump to pay $83.3 million in damages to the libel plaintiff E. Jean Carroll, the question has been whether the dollar amount was high enough to put a stop to his lies.

That we must ask this question tells us something important about the moment in which we find ourselves. And it tells us something important about both the value and the limits of libel law.

Doubt about what will come next is well placed. As Ms. Carroll’s lawyers argued, Mr. Trump has bragged of wealth far exceeding this amount. He has publicly resolved to repeat the falsehood “a thousand times.” Indeed, he doubled down on his false claims about Ms. Carroll on social media and on the campaign trail even as the jury was hearing his case.

But this “will he or won’t he?” speculation is only the latest data point in a larger, more alarming trend of libel damages simply not seeming to carry the deterrent effect that defamation law presupposes they will have. We have entered an era in which the incentives to serve up lies for politics or profit are so strong that libel damage awards and settlements may not meaningfully change behaviors.

Several examples show a stark break from the past. For most of the long history of libel law, a jury determination that material was false and defamatory settled the question, and defendants facing that liability would take every possible step not to repeat the lie — both because it would be socially reprehensible to do so and because the risk of punitive damages was a powerful deterrent unlikely to be overcome by any stronger incentive. In short, libel law used to stop the libel.

But recent cases have revealed some defendants who seem motivated to defame even as their assets are depleted or made unreachable to plaintiffs. Rudy Giuliani, who reasserted his defamatory allegations against two Georgia poll workers outside the courthouse as the jury decided his case, filed for bankruptcy just days after he was ordered to pay $148 million for those lies. Alex Jones did the same less than two months after a jury ordered him and his Infowars parent company to pay close to $1 billion for years of lies about the Sandy Hook families. He had used his broadcasts to rail against the suits throughout the proceedings and to seek audience donations to fund them.

In other cases, the worry is the opposite: that the defendants are so well resourced and have so much to gain financially from a particular story line that libel payouts will simply be chalked up as the cost of doing business but will not meaningfully motivate truthfulness. Even Fox News’s staggering $787 million settlement with Dominion Voting Systems last year was a small percentage of Fox’s cash on hand, leaving some critics to worry that it was a blip for a corporation that might still feel the pressure of an audience apparently eager to hear conspiratorial lies.

What we are seeing, for the first time, is a lack of surety that the foundations upon which our libel doctrine is built remain intact. Indeed, these situations — of which the Carroll verdict is our most powerful example — seem to fly in the face of the core assumptions of defamation law: that it can remedy reputational harm, correct the public record and deter defamers from telling lies. It is a body of law centered on the belief that when all relevant and provable evidence is considered and truth is declared, it will be welcomed and accepted by the population. It assumes that the financial consequences that juries impose for lies will then move the needle. It thinks defamers will choose the truth over the prospect of further damages.

And now the question is whether Mr. Trump — whose other legal run-ins have led to significant upticks in campaign contributions — will be dissuaded from repeating this now twice-adjudicated falsehood or will continue to make the calculation that the incentives tilt in favor of its spread. His initial statement after Friday’s verdict, lashing out broadly at the decision and political opponents but not repeating the lie, suggests he might be choosing his words more carefully. But he also went on national television to repeat his false claim about Ms. Carroll a day after a jury in an earlier case first found him liable for it and continued this narrative even in his brief time on the stand in the second case.

Nothing about having the statements determined by a jury to be false had an impact on Mr. Trump’s willingness to repeat them, which is how libel law is supposed to work. In this new, upside-down world that libel law is not built to address, it is far from certain that even a jury award this high or higher will outweigh whatever upsides he determines may come from repeating his claim to an audience that wants to hear it.

And if it turns out that the $83 million verdict is enough to sting the defamer but not enough to stop him, it is because libel law just cannot pull the heavy oar we are asking of it. The hard reality is that the doctrine not only makes assumptions about those who tell reputation-damaging and democracy-harming lies; it makes assumptions about us as listeners.

Libel law imagines that we, as a people, respect the rule of law. It envisions that libel damages will protect not only plaintiffs like Ms. Carroll but all of society as we sort through what is relevant and provably accurate, band together to reject falsehoods and denounce and deter those who knowingly lie. It expects that jurors doing this work on behalf of all of us will be celebrated, not that they will have to be warned to keep their participation secret from even their families and their identities shielded even from one another. It assumes that those who have told deliberate fabrications will see their audience dry up.

Libel law assumes that we wish to share a single, objective reality. It cannot tackle the supply-and-demand problem that today leaves us wondering if tens of millions of dollars in punitive damages will stanch the flow of a lie. It presupposes that we crave truth.

RonNell Andersen Jones is a professor of law at the University of Utah and a visiting research fellow at the Knight First Amendment Institute at Columbia University.

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