Donald Trump’s repeated libel — where does the law stand?

Could E. Jean Carroll get an injunction barring former President Trump from libeling her again?

While it’s certainly in the realm of possibility, it would be difficult to obtain and narrow in scope — and prove ineffective were the former president to make different disparaging assertions, not merely repeat prior ones. 

A federal jury ruled May 9 that Trump defamed the former Elle magazine columnist in an October 2022 post on the Truth Social platform. The gist of the defamation complaint was that Trump knowingly made false, reputation-harming statements when he claimed Carroll was “not telling the truth” and engaging in “a hoax and a lie” about having been sexually assaulted by Trump. In short, Trump called Carroll a liar. 

The defamation verdict for Carroll, although overshadowed by the jury’s simultaneous ruling that Trump sexually abused her, has been dubbed “historic” for unanimously finding that “Trump told a flagrant, knowing lie.” The decision also comports with the U.S. Supreme Court’s recognition that falsely labeling someone a liar may be libelous. 

But the day after the verdict, Trump was back at it during a live CNN town hall with anchor Kaitlan Collins, engaging in what one newspaper called “a fusillade of falsehoods.” Significantly, the presidential hopeful doubled down on his prior broadside against Carroll, stating “I have no idea who this woman [is]. This is a fake story, made up story.” He deployed the phrase “fake story” three times.

That sparked speculation about whether Carroll’s attorney, Roberta Kaplan, would file a third defamation suit — another case filed in November 2019 is ongoing — against Trump. “Everything’s on the table […] and we have to give serious consideration to it,” Kaplan told The New York Times the day after the town hall. 

On May 22, the other shoe dropped. Instead of filing a third lawsuit, Kaplan announced she would move to amend Carroll’s 2019 complaint, seeking more damages based on Trump “repeating on CNN the statements the […] jury found to be defamatory.” What might happen were Carroll to seek not just a reported $10 million-plus from Trump but also an order barring him from uttering the assertion that Carroll lied about Trump assaulting her — an order possibly subjecting him to jail time for civil contempt if he violated it? 

It would be an uphill, albeit not impossible, slog. And even if Carroll climbed the hill and obtained an injunction, Trump might dodge it by casting similar aspersions — but not identical ones — to the liar charge. Such a court order would be difficult to get, for several reasons.

First, as one media law scholar encapsulates it, a core tenet of American law is that “libel plaintiffs are not entitled to injunctive relief; their remedies are solely monetary.” Rather than preemptively stopping a potentially false and defamatory message from coming out, the traditional approach is to let it be aired. If it then turns out to be false and defamatory, the victim can sue the speaker (post-publication) for compensatory, and possibly punitive, damages.

Second and related, a court-imposed injunction on speech, as Berkeley Law Dean Erwin Chemerinsky has observed, constitutes a prior restraint (that is, speech is restrained prior to it coming out). Prior restraints on speech presumptively violate the First Amendment’s guarantee of free expression. 

Obtaining an injunction in the face of this presumption typically requires a person to demonstrate some kind of irreparable injury that money cannot adequately compense. That might be so if a defamation defendant were penniless (“judgment-proof”) and thus couldn’t pay a monetary judgment and wouldn’t be financially deterred from uttering future falsehoods. But that doesn’t seem to apply to Trump, who claims he’s “really rich.”

Third, some state constitutions bar prior restraints. New York’s constitution provides that “[e]very citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right.” In brief, New Yorkers can say whatever they want, but may be sued afterward for damages, thereby being held responsible for abusing their speech rights. That’s relevant because New York law is in play in Carroll’s defamation lawsuits against Trump.

The good news for Carroll is that a growing number of courts sometimes permit injunctions barring defendants from repeating statements that a judge or jury previously concluded were libelous. As the California Supreme Court explained in 2007, “an injunction issued following a trial that determined that the defendant defamed the plaintiff [and] that does no more than prohibit the defendant from repeating the defamation” does not violate the First Amendment. This constitutes what the court called “a post-trial injunction” and what one scholar calls “an anti-defamation injunction.” A federal court in Florida agreed in 2009 that such post-trial injunctions may be OK when monetary damages won’t deter defendants from repeating libels. 

New York law is less certain, but a trial judge there in 2018 allowed a preliminary (temporary) injunction before trial “in the context of narcissistic defamatory statements.” A New York appellate division decision from 2010 indicates that it might be possible to enjoin a “sustained campaign” of defamatory statements targeting a person’s business. 

The bottom line is that a jury already has determined that Trump’s accusation that Carroll lied was false and defamatory. Federal District Court Judge Lewis A. Kaplan, who is presiding over both of Carroll’s defamation lawsuits, thus might be able to bar Trump from uttering future statements that Carroll lied about the sexual abuse.

Of course, such an order couldn’t stop Trump from hurling other allegations Carroll’s way or from violating it if he wanted to risk fines and jail. For now, however, Carroll only seeks more money.

Clay Calvert, J.D., Ph.D. is professor emeritus at the University of Florida (UF). He held a joint appointment as a professor of law at the Fredric G. Levin College of Law and a Brechner Eminent Scholar in Mass Communication in the College of Journalism and Communications. Specializing in First Amendment and media law, Calvert is lead author of Mass Media Law (22nd ed. 2023, McGraw Hill).