Why ABC settled a case they knew they would win — and why the Lincoln Project didn't

Since 2012, the U.S. Dept. of Justice has defined rape as bodily “penetration, no matter how slight… with any body part or object… without the consent of the victim.” To be redundant, no penis is required.

On May 9, 2023, a New York jury determined that Donald Trump had shoved his unwelcome fingers inside E. Jean Carroll’s genitals, after he pushed her against a Bergdorf Goodman dressing room wall, and that he later defamed her. Trump’s ‘what’s a little groping among friends’ defense argued that $5m in damages was excessive because the jury didn’t say Trump raped Carroll, only that he sexually assaulted her.Trump’s claim led presiding U.S. District Judge Lewis Kaplan to clarify in a memorandum that, in legal parlance, inserting anything into a woman’s vagina against her will, including Trump’s nasty fingers, was, indeed, rape:

The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape…’ Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.

ABC settled a case they knew they would win

Months after Kaplan’s clarification of the jury’s finding, ABC News anchor George Stephanopoulos said on the air that Trump was found liable for rape. Because Trump relies on frivolous lawsuits to silence his critics and uses protracted and unethical litigation as his bullwhip, he sued ABC for defamation.

Given Kaplan’s clarification that the jury found Trump had legally raped Carroll, Stephanopoulos’s on-air statement was judgement proof. And yet, to protect separate corporate interests of its parent company, Disney, ABC News decided to ‘settle’ the case, pay Trump $15m, and officially apologize for telling the truth.

Under controlling jurisprudence on the free press, Times v. Sullivan, Trump had no chance of winning the case because he would have to prove Stephanopoulos spoke with reckless disregard of the truth, a finding blocked by the presiding judge’s clarification of ‘rape.’ ABC’s decision to pay Trump and apologize nonetheless is an Orwellian warning that, when covering an ascendent fascist, up will be down and down will be up, and only Trump can decide which is which.

The Lincoln Project shows us how it’s done

ABC’s capitulation is a study in contrast with another 1st Amendment case from last week. In Flynn v. Wilson, right wing provocateur Mike Flynn sued Rick Wilson, one of the founders of the Lincoln Project, a group of republicans committed to fighting Trump’s criminality.

For context, Flynn was Trump’s former national security advisor who championed using the military to overthrow the federal government after Biden won in 2020. Flynn also admitted he lied to the FBI about communications with Russia in order to protect Trump, a performative ‘admission’ since the FBI already had him on a wiretap doing what he claimed he hadn’t.

Following Flynn’s dalliance with Putin, Wilson referred to him on X as "Putin employee Mike Flynn," retweeting separately that, "FYI, Mike Flynn is Q." In Wilson’s book, “Everything Trump Touches Dies: A Republican Strategist Gets Real About the Worst President Ever,” Wilson wrote that “Flynn, a disgraced former army general was so outrageously in bed with the Russians that even Trump was forced to fire him.”

Taking a page out of Trump’s lawfare book, Flynn sued Wilson for defamation. Flynn argued that although he’d been paid for speaking at a Russian RT event, it wasn’t legally the same thing as being “a Putin employee” (just like rape isn’t the same as sexual assault). Flynn also argued that there was a difference between being "Q" and marketing products and conspiracy theories associated with Q, which Flynn could hardly deny. Wilson moved for summary judgment, arguing that his tweets were protected opinion and that Flynn could not prove he acted with "actual malice.”

Last week the Florida Court of Appeals agreed with Wilson and affirmed the lower court’s dismissal. Citing N.Y. Times Co. v. Sullivan, the appellate court found “no error in the trial court's determinations that Flynn's lawsuit against Wilson lacked merit and that it was brought "primarily" because of Wilson's exercise of his First Amendment rights.” Whether Flynn was a Putin employee or, in fact, embodied “Q,” was splitting hairs as to the overall message Wilson was conveying: that Trump’s own national security advisor was a moron who supported Russian interests over the U.S.

Journalists worried about Trump’s vexatious litigation should tape the appellate court’s conclusion to their refrigerators for courage: “We (have) a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks… Like it or not, such attacks are a characteristic feature of our democracy… Wilson's tweets may not have been polite, and they may not have been fair. But the First Amendment required neither, and so we affirm.”

Corporate elites are digging their own graves

In Trump v. ABC, the president of ABC News was no doubt opposed to caving to Trump on his specious claim. But ABC News has a bigger boss: the Disney corporation. Bob Iger, the $31 million a year CEO of Disney, calculated that making nice with an unhinged president was in Disney’s long term corporate interests, free speech be damned.

ABC’s capitulation reflects a chilling pattern among corporate-owned media outlets: Meta’s Mark Zuckerberg, OpenAI’s Sam Altman, Washington Post’s Jeff Bezosand Time magazine’s Mark Benioff have all similarly and prematurely capitulated to Trump. L.A. Times’ Patrick Soon-Shiong groveled even lower, killing an editorial criticizing Trump’s clown-car cabinet picks. Soon-Shiong has now officially limited the L.A. Times’ criticism of Trump.

Each of these CEOs acted to subordinate the 1st Amendment- and thereby democracy itself- to the bottom line of their other corporate concerns. For Bezos, it’s Amazon and Blue Origin, a federal NASA contractor. For Soon-Shiong, it’s for-profit healthcare corporation NantWorks, involved with federal vaccine distribution. For Benioff, it’s Salesforce’s lucrative contracts with the U.S. Customs and Border Patrol, while Altman’s Open AI is positioned to become a major contractor with the Pentagon.

These corporate tycoons, prematurely capitulating on free speech to protect their unrelated corporate interests, have demonstrated the perils of for-profit legacy media. Doing so, they have all but guaranteed that Trump will attempt to imprison his media critics. They need a reminder of their own, taped to their sub-zero refrigerators, from the BBC’s History Magazine:

Many members of (Germany’s corporate elites) thought Hitler was going to be the useful idiot who was going to play their games… they wanted to ride the Nazi movement like a horse.. They would use the momentum and the political potential of the Nazi party (to advance their corporate interests) but still keep it at bay… Within three or four months, they discovered that they were the horse and that Hitler was the horseman.

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Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. She writes the free Substack, The Haake Take.