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.