The Central Park Five Sue Trump

If a tree fell in the woods and everyone heard it, can it defame someone thirty years later?

In 1989, a group of Black and Latino teenagers, dubbed the “Central Park Five,” were brought in as suspects of the brutal assault and rape of a jogger in Central Park. In response, Donald Trump took out a full-page ad in four major New York City newspapers, demanding: “Bring Back The Death Penalty. Bring Back the Police!” The Central Park Five were ultimately exonerated in 2002 after DNA evidence and a confession from another man emerged. Despite fueling racial tensions and public hysteria, Trump has never acknowledged the since-established innocence of the Central Park Five and has repeatedly asserted his view that they were guilty. Now, he’s back at it again. 

In response to being called out for the racist ad by Kamala Harris during the September 2024 Presidential Debate, Trump insisted that the plaintiffs had “admitted – they said, they pled guilty. And I said, well, if they pled guilty they badly hurt a person, killed a person ultimately.” 

To be clear, none of the Central Park Five ever pled guilty (they all recanted their coerced confessions). Nor was the victim killed. 

In response, the Central Park Five sued. Their Complaint alleges (1) defamation, (2) false light, and (3) infliction of emotional distress. While the case was filed in Pennsylvania, the plaintiffs and Trump are all from New York. Therefore, the court will likely apply New York law.

Carroll Redux Redux?

Ordinarily, plaintiffs in a defamation suit must prove actual loss to their reputation. Similar to Trump’s repeated libeling of E. Jean Carroll, there’s no question that his statements have the potential to retraumatize, yet it's unclear if they are reputationally injurious. The Central Park Five are best known for being wrongfully accused, and Trump is a serial liar. Did anyone change their mind about the Central Park Five on Debate Night? 

However, under the theory of defamation per se, certain types of accusations qualify for presumed damages. Under New York law, defamation per se includes four categories of speech: charging a plaintiff with criminal activity, falsely imputing an offensive disease, false facts that harm a business, trade, or profession, and imputing unchastity (yes, the law was written by prudes). The Complaint asserts that Trump’s statements constitute defamation per se for ascribing criminal offenses and serious sexual misconduct to the Plaintiffs.

Yet, defamation per se only provides for nominal damages (as low as a dollar) absent evidence of actual harm. Without a strong path to compensatory damages, the Plaintiffs are likely aiming for punitive damages. Defamation law isn’t just a means to make Plaintiffs “whole” after reputational harm - it can also serve to punish (and deter) terrible behavior. To receive punitive damages in New York, a plaintiff must demonstrate that the defendant acted with malice, ill will, or wanton disregard to the interests of others. The conduct must be “so grossly excessive as to show by its very exorbitancy that it was actuated by passion" (Nardelli v. Stamberg, 44 N.Y.2d 500, 504 (1978)). The high standard of proof to show egregious conduct, coupled with general reluctance by courts, makes punitive damage awards rare. Yet, after Trump was already found to have libeled Carroll, a second jury awarded her a whopping $65 million in punitive damages (versus $18.3 million in compensatory damages). If the goal is to punish and deter Trump, there is a precedent. 

Emotional Damage

False Light Invasion of Privacy is a tort that punishes offensive false statements that cause personal distress. Where false light is recognized, it is clearly distinguished from defamation based on injury: defamation compensates for harm to reputation while false light compensates for emotional damage. While Pennsylvania recognizes False Light, New York does not. That means the false light claim is unlikely to be successful. 

Intentional Infliction of Emotional Distress (commonly referred to as “IIED”) is similarly a longshot. In New York, IIED requires extreme and outrageous behavior causing severe emotional distress, mental trauma and/or bodily harm. Offensive as Trump’s comments are, they don’t reflect a sustained pattern of intentional harassment.

Never Stop Never Stopping

Even after the Carroll suit, and his lawyer Rudy Giuliani being ordered to turn over his luxury goods and Manhattan apartment to the Georgia election workers he defamed, Trump remains unchastened. Perhaps there should be a new category of tort: beating a dead horse.