Trump May Well Try to Clamp Down on Anti-Trump Humor; Can He?

[Jim Lane]

39. I disagree about "allegedly"

You can't just stick "allegedly" in front of a defamatory statement and thereby escape liability.

What kills libel suits? First, the truth, as you say. Second, even if the statement turns out to be false, absence of malice. A public figure like Trump can't prevail without proving that the statement was made with the knowledge that it was false or in reckless disregard of its truth or falsity. Third, opinion. There's no cause of action for defamation for a statement that, fairly read, expresses an opinion rather than conveying an assertion of fact. This doesn't mean that "It's my opinion" is a magic talisman, any more than "allegedly" is. For example, "It's my opinion that Trump perjured himself in that casino licensing hearing" is potentially actionable, because it obviously relates to a matter of fact despite the use of the word "opinion". On the other hand, "Trump is really thin-skinned" and "No one as thin-skinned as Trump is qualified to be President" are expressions of opinion (even though they don't use that word) and hence not actionable.

I do agree with you about the Streisand Effect. I wouldn't be at all surprised if, more than once over the next four years, Trump summons a lawyer into his office and angrily demands that a defamation suit be filed, but the lawyer manages to talk him out of it (over the course of several days) by pointing out how the suit would be publicized.