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Micaela Lueders
Dr. Thompson
Media Law Article Analysis
April 19, 2018
Zervos v. Trump Defamation Case

According to the New York Post, Summer Zervos is suing President Donald J. Trump for

defamation based on remarks he said about Zervos. The remarks were in regards to her previous

accusations against President Trump groping her while hosting his reality TV show, “The

Apprentice.” President Trump said that the allegations were “fiction” and she had made them up

for “personal gain.” Zervos is suing on the grounds that these comments damaged her reputation

and can lead to people thinking she is “contemptible.” In this case and all libel cases, the burden

of proof fails on the plaintiff to show how this statement is considered libelous. While

defamation is spoken and libel is published damaging information, both cases require the

plaintiff prove seven things: presented as a statement of fact, publication, identification,

defamation, damage, falsity and fault.

The statement of fact is a crucial notion in any libel case as it analyzes how the statement

is presented. If the statement is an opinion, that is not libelous as opinions are not fact and cannot

be wrong. The plaintiff must prove that the statement was not presented as an opinion or

personal belief which in this article there is potential for. The article does not provide context

around the quotes of a few words, but the implications are made to suggest that this was not

presented as an opinion. In terms of publication, the NY Post article does not reveal the nature of

how President Trump said these remarks, but it must have been revealed in a public manner,

even if only one another person aside from Zervos and President Trump heard President Trump

saying these things. Publication means the information must have spread beyond the plaintiff and

defendant in order for the speech to be libelous, and it seems the speech was broadcasted beyond

these two parties thus fulfilling the publication requirement.

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Identification means the plaintiff must show that he or she was the specifically the

person identified in these remarks. The direct quotes in the article attribute her to mean Zervos,

so it seems the statements were presented in direct regards to Zervos’ previous claims of the now

President groping and pressing his privates against her. Defamation must show that the statement

was damaging to the person’s reputation. This case seems like a libel per se case, which depends

on the state laws in the state where in the case was filed, but the textbook says that calling

someone a liar is a defamatory statement that requires no further proof or context. President

Trump saying that Zervos made up the allegations for “personal gain” could be very damaging to

her reputation. In terms of damages, the plaintiff must show there were some negative

repercussions as a response from the statement, like the loss of business revenue or job

opportunities. These damages can be actual, special, presumed or punitive. Zervos will have to

present in court exactly how the President’s statements negatively impacted her life and caused

her harm.

Furthermore, the plaintiff must prove falsity. Zervos will thus have to prove that the

previous allegations of groping were true because this would undermine the statement that she

created the allegations as a scheme for personal gain. This would weaken President Trump’s

claim because it would make it untrue and prove fault of the defendant for spreading libelous

information. Zervos will also have to prove that President Trump is at direct fault for making

these comments that caused her damage or harm. Considering the NY Post article used direct

quotes, Zervos will not have a hard time proving this aspect of libel as it is directly attributed to

the President. He is the only one to blame for the things he said, so fault is the last aspect she

would have to prove to win her defamation case.

President Trump’s best defense is the truth. Zervos as the plaintiff is responsible for

proving the statement at issue is false rather than President Trump having to prove its true. If
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Zervos cannot actually convey that she did not make up these statements for public gain,

President Trump would win this case. Libel and defamation have to be on the basis of falsity.

Furthermore, the case will also be interesting if Zervos will be considered a public or private

figure because she would have to either prove actual malice or negligence. According to the

textbook, a public figure is defined as someone who is the public spotlight, typically voluntarily.

Zervos was in the public spotlight 11 years ago as a reality TV show star, but it makes little

mention of her career past that. She did appear to return to the spotlight by accusing President

Trump on the previous grouping charges while he was running for president. I do not know if her

decade ago reality TV stint and recent lawsuit considers her concretely a public figure. If

anything she would be a limited-purpose public figure because she did put herself in the middle

of a public controversy and tried affect the resolution and public opinion by suing President

Trump the first time. She would then have to prove actual malice in her law suit which is more

difficult than negligence. Negating the claims of knowledge of falsity or reckless disregard for

the truth is another defense for President Trump if actual malice is added into the case. However,

if Zervos can adequately prove her first lawsuit claims were true, then President Trump is going

to have an incredibly hard time disproving actual malice as he was there and also knowing the

truth.

Another defense made in the NY Post article that President Trump is claiming immunity

in civil cases because he is president or at least defer the case until he is no longer serving as

president. This notion directly goes against the balance of powers principles stressed in the

Constitution. President Trump, while head of the executive branch, still lives in a democracy and

is checked by the powers of the Supreme Court and the Legislative branch. As Justice Scheter

suggests in the NY Post article, the Clinton v. Jones case demonstrated that the sitting president

is not immune from being sued in federal court for unofficial acts. The president cannot
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disregard this lawsuit solely on the basis that he is the president, so this defense is not as strong

as the ones previously discussed. Yet, this is the one President Trump’s lawyers are seeking in

order to postpone this case.

If Zervos can prove that the statements made by President Trump were false, she has a

strong defamation case against the President. Based on the evidence in the NY Post article, it

seems she could fairly easily prove publication, identification, defamation, damages, fault and

harm. Falsity, if proven, I think will win her case. I think it will also look suspicious to the jury

the fact that the President seems to be actively trying to avoid having this case go to court. If he

as a law abiding citizen and leader of our country truly supports democracy, he would not be

trying to stall the trial process. He and no one in the United States are above the law. I think that

with sufficient evidence of falsity the jury will have no choice but to have Zervos win the case as

the President has already demonstrated the other elements she has to prove to win her case.