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Costly Falsehoods

Melania Trump.
First lady Melania Trump at Liberty University in November 2018. Photo by Andrea Hanks, courtesy The White House.

I have to admit to some mixed feelings when I read that London’s Daily Telegraph newspaper had issued a public apology to first lady Melania Trump for publishing an article about her that was, to put it mildly, unflattering.

The Jan. 19 magazine cover story entitled “The mystery of Melania” contained “a number of false statements,” the newspaper said in its apology, “which we should not have published.” It was not a small number, either. By my count, the newspaper listed eight factual errors in two corrective paragraphs, but they all amounted the same basic point: That the article unfairly portrayed the article’s subject as a gold-digging nitwit of no demonstrated talent except the ability to maximize the benefit of her natural good looks.

“We apologize unreservedly to The First Lady and her family for any embarrassment caused by these allegations,” the Telegraph groveled. “As a mark of our regret we have agreed to pay Mrs Trump substantial damages as well as her legal costs.”

By the time I saw the correction, the original article had been pulled from the Telegraph’s website, although I found an abridged version elsewhere. Still, it was pretty clear that this piece, drawn from Nina Burleigh’s book “Golden Handcuffs: The Secret History of Trump’s Women,” was not unlike a lot of the commentary that has appeared about President Donald Trump’s third and current wife since he entered the 2016 presidential race. Burleigh, for her part, was much less contrite; her website features a copy of a letter demanding the Telegraph retract its apology and provide damages for the harm done to Burleigh’s reputation. She has also publicly stated that she stands by her reporting.

When you are a public figure in America – and a first lady is always a public figure – you pretty much just have to take any media mistreatment that comes along. In the interest of protecting First Amendment freedoms of speech and of the press, our libel standards are extraordinarily high compared to other democracies. A complainant must demonstrate that any offending statements were false, were defamatory and were made with “actual malice,” meaning the author either knew the statements were false or acted with reckless disregard of their truthfulness. The burden of proof is on the complaining party.

In the United Kingdom, where the Telegraph is published, it is sufficient that a published claim is a “negative false statement of fact” that specifically refers to the claimant. The burden is on the author or publisher to prove the accuracy of the published statement. There is a “qualified privilege” defense against libel claims when the person making the statements acts without malice and had a “legal, moral or social duty to act,” but this is not nearly as high a bar for claimant to meet as we have in the United States.

A revision to the British law in 2013 was thought to end “libel tourism” in the U.K. by requiring that a claimant show “serious harm,” and by limiting claims in English and Welsh courts to people or entities with a significant connection to those places. Previously, it was not unheard of for individuals to bring a libel claim in a British court even if neither party had strong ties to the U.K. The United States went so far as to pass a law in 2010 specifically to shield Americans from overly harsh British libel rulings of this type. The revised British law makes it more challenging for those outside the U.K. to make libel claims in the country – but not entirely impossible.

On the one hand, I think the Telegraph piece amounted to bullying. By all reports, and based on the abridged version still posted elsewhere, it was a demeaning and crudely embellished portrayal of someone who has never held or sought public office. Such an article would scarcely be tolerated by most of the American press, but for a widely shared disapproval of Melania Trump’s husband and his politics.

On the other hand, such treatment comes with the territory. Presidents and presidential candidates routinely get treated aggressively, and often unfairly and inaccurately. Unfortunately, so do their families. To some extent Michelle Obama and Barbara Bush may have escaped this, but we saw it in varying degrees in the treatment of Ann Romney, Tipper Gore, Nancy Reagan and Hillary Clinton. Maybe Bill Clinton too, although I’m not sure I would extend my sympathy quite that far.

Still, it is clear that any complaint by Melania Trump about the very same article published in similarly prominent American media would not likely have gotten nearly as far. Maybe some newspapers would have published a correction, but I can’t imagine a major American outlet paying her “substantial damages” over the claims enumerated in the Telegraph’s mea culpa. So why is an American first lady pursuing British media in British courts over claims she could not credibly pursue here at home?

Because that’s the place where she can at least seek some redress. I can’t say I agree with it, but I can’t say I blame her either. Stephanie Grisham, Melania Trump’s communications director, said the first lady often encountered “opportunists out to advance themselves by disparaging her name and image,” and added that “She will not sit by as people and media outlets make up lies and false assertions in a race for ratings or to sell tabloid headlines.” Melania Trump previously secured a major settlement from the Daily Mail, another U.K. publication, for similarly offensive and injurious treatment.

I like the American system of rollicking and sometimes messy debate, but I am not unhappy with the results the British system delivered in this case. If the Telegraph was right about anything, it is that the false statements about Melania Trump never should have been published in a credible news outlet. Unfortunately, given the widespread bias against anything named Trump in both countries’ media, there is not much of a mystery as to why it happened in this case.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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