664 F.Supp.3d 550
S.D.N.Y.2023Background:
- E. Jean Carroll alleges Donald J. Trump raped her in a New York department store in the mid-1990s; she previously sued for defamation based on his June 2019 statements (Carroll I).
- Trump publicly denied the allegation in several June 2019 statements, accusing Carroll of fabricating the story to sell a book or pursue political aims; Carroll sued for defamation in November 2019.
- Trump answered in Carroll I with boilerplate denials and an affirmative defense that his June 2019 statements were true.
- The Adult Survivors Act (ASA) created a one-year window for adult sexual-assault suits; it became effective November 24, 2022. Carroll filed Carroll II that day, bringing an ASA claim for the alleged rape and a defamation claim based on Trump’s October 12, 2022 Truth Social post.
- Trump moved for partial summary judgment seeking dismissal of the October 12 defamation claim, invoking New York Civ. Rights Law § 74 (the § 74 “fair-and-true report”/litigation privilege). The court denied the motion.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Oct. 12, 2022 statement is a “report of a judicial proceeding” under N.Y. Civ. Rights Law § 74 | Carroll: the post is commentary about underlying events and personal attacks; only passing references to litigation, so an ordinary reader would not view it as a report | Trump: the post repeats/ summarizes his Carroll I denials and defenses and references the case and a judicial decision, so it reports on Carroll I | The statement is not a report of a judicial proceeding; § 74 privilege does not apply on that ground (summary judgment denied) |
| If it were a report, whether the Oct. 12 statement is a “fair and true” report protected by § 74 | Carroll: the post goes beyond the answer and pleadings, suggests a broader conspiracy and more corrosive allegations, and would have a different effect on readers than the official filings | Trump: the post merely restates denials/ defenses from his Carroll I answer and is substantially accurate | Court: Trump failed to show as a matter of law the post is a fair-and-true report; a reasonable jury could find it altered the effect of the filings (summary judgment denied) |
| Whether the absolute in-court litigation privilege shields out-of-court statements like the Oct. 12 post | Carroll: absolute privilege applies to in-court materials only; out-of-court statements are governed by § 74’s fair-and-true-report rule | Trump: invoked an absolute litigation privilege (citing § 74) to bar the defamation claim | Court: reiterated that absolute in-court privilege is broader but does not cover out-of-court statements; § 74 is the controlling statutory fair-report privilege and does not protect the Oct. 12 post as a matter of law |
Key Cases Cited
- Kinsey v. New York Times Co., 991 F.3d 171 (2d Cir. 2021) (test whether ordinary reader can tell a publication reports on a judicial proceeding)
- D’Annunzio v. Ayken, Inc., 876 F. Supp. 2d 211 (E.D.N.Y. 2012) (describing § 74’s purpose to encourage dissemination of judicial information)
- Fine v. ESPN, Inc., 11 F. Supp. 3d 209 (N.D.N.Y. 2014) (privilege does not attach when context makes it impossible for ordinary viewer to determine the piece reports on a proceeding)
- Calvin Klein Trademark Trust v. Wachner, 129 F. Supp. 2d 248 (S.D.N.Y. 2001) (a report is not "substantially accurate" if it would have a different effect than the official record)
- Pisani v. Staten Island Univ. Hosp., 440 F. Supp. 2d 168 (E.D.N.Y. 2006) (Section 74 immunity is a jury question when fairness/accuracy of a report is disputed)
- Corp. Training Unlimited, Inc. v. Nat’l Broad. Co., 868 F. Supp. 501 (E.D.N.Y. 1994) (format and context may prevent a broadcast from qualifying as a report of court proceedings)