Carroll v. Trump

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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E. JEAN CARROLL,

Plaintiff,

-against- 22-cv-10016 (LAK)

DONALD J. TRUMP,

Defendant.

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MEMORANDUM OPINION

Appearances:

Roberta Kaplan

Joshua Matz

Shawn Crowley

Matthew Craig

Trevor Morrison

Michael Ferrara

KAPLAN HECKER & FINK LLP

Attorneys for Plaintiff

Joseph Tacopina

Matthew G. DeOreo

Chad Derek Seigel

TACOPINA SEIGEL & DEOREO, P.C.

Alina Habba

Michael T. Madaio

HABBA MADAIO & ASSOCIATES LLP

Attorneys for Defendant

2

LEWIS A. KAPLAN, District Judge.

Plaintiff E. Jean Carroll alleges in this case (“Carroll II”) and a second very closely

related case (“Carroll I”) that businessman Donald J. Trump, as he then was, raped her in a New

York department store in the mid 1990s. In Carroll I, she accuses Mr. Trump only of defaming her

in a series of statements he issued in June 2019, shortly after Ms. Carroll publicly accused him of

rape. In this action, Ms. Carroll brings two other closely related claims. First, she seeks to recover

damages and other relief for the alleged rape pursuant to a newly-enacted New York law, the Adult

Survivors Act (“ASA”), which created a one-year period within which persons who allegedly were

sexually assaulted as adults could sue their alleged assaulters. Second, she alleges that Mr. Trump

libeled her in a statement he published on October 12, 2022 on Truth Social, his social media

platform.

The matter now is before the Court on Mr. Trump’s motion for partial summary

judgment dismissing only the libel claim based on Mr. Trump’s October 12, 2022 statement. He

contends that it is barred by the “absolute litigation privilege” which he mistakenly locates in Section

74 of the New York Civil Rights Law and which in relevant part provides:

“A civil action cannot be maintained against any person, firm or corporation, for the

publication of a fair and true report of any judicial proceeding, legislative proceeding

or other official proceeding, or for any heading of the report which is a fair and true

headnote of the statement published.”1

For the reasons discussed below, Mr. Trump’s motion is denied.

1

N.Y. Civ. Rights Law § 74.

3

Facts

Mr. Trump’s Allegedly Defamatory June 2019 Statements

Ms. Carroll’s rape allegation first became public on June 21, 2019, when New York

magazine published an excerpt from her then-forthcoming book that described Mr. Trump’s alleged

assault of her.2 That same day, Mr. Trump issued a statement that was published on Twitter by the

press:

“Regarding the ‘story’ by E. Jean Carroll, claiming she once encountered me

at Bergdorf Goodman 23 years ago. I’ve never met this person in my life. She is

trying to sell a new book—that should indicate her motivation. It should be sold in

the fiction section.

“Shame on those who make up false stories of assault to try to get publicity

for themselves, or sell a book, or carry out a political agenda—like Julie Swetnick

who falsely accused Justice Brett Kavanaugh. It’s just as bad for people to believe

it, particularly when there is zero evidence. Worse still for a dying publication to try

to prop itself up by peddling fake news—it’s an epidemic.

2

The Court assumes familiarity with its prior opinions, which describe in detail the facts and

procedural histories of both actions involving these parties. Doc. No. 20-cv-7311 (Carroll

I), Dkt 32, Carroll v. Trump, 498 F. Supp. 3d 422 (S.D.N.Y. 2020), rev’d in part, vacated

in part, 49 F.4th 759 (2d Cir. 2022); Carroll I, Dkt 73, Carroll v. Trump, 590 F. Supp. 3d

575 (S.D.N.Y. 2022); Carroll I, Dkt 96, Carroll v. Trump, No. 20-cv-7311 (LAK), 2022 WL

6897075 (S.D.N.Y. Oct. 12, 2022); Carroll I, Dkt 145, Carroll v. Trump, No. 20-cv-7311

(LAK), 2023 WL 2441795 (S.D.N.Y. Mar. 10, 2023); Dkt 95, Carroll v. Trump, No.

22-cv-10016 (LAK), 2023 WL 2652636 (S.D.N.Y. Mar. 27, 2023); Dkt 92; Dkt 56, Carroll

v. Trump, No. 22-CV-10016 (LAK), 2023 WL 2006312 (S.D.N.Y. Feb. 15, 2023); Dkt 38,

Carroll v. Trump, No. 22-cv-10016 (LAK), 2023 WL 185507 (S.D.N.Y. Jan. 13, 2023).

Except where preceded by “Carroll I”, “Dkt” references are to the docket in this case.

4

“Ms. Carroll & New York Magazine: No pictures? No surveillance? No

video? No reports? No sales attendants around?? I would like to thank Bergdorf

Goodman for confirming that they have no video footage of any such incident,

because it never happened.

“False accusations diminish the severity of real assault. All should condemn

false accusations and any actual assault in the strongest possible terms.

“If anyone has information that the Democratic Party is working with Ms.

Carroll or New York Magazine, please notify us as soon as possible. The world

should know what’s really going on. It is a disgrace and people should pay dearly for

such false accusations.”3

On the following day, June 22, 2019, Mr. Trump made other statements to reporters:

“[Reporter]: [Y]ou had said earlier that you never met E. Jean Carroll. There

was a photograph of you and her in the late 1980’s—

“[Trump]: I have no idea who this woman is. This is a woman who has also

accused other men of things, as you know. It is a totally false accusation. I think she

was married—as I read; I have no idea who she is—but she was married to a,

actually, nice guy, Johnson—a newscaster.

“[Reporter]: You were in a photograph with her.

“[Trump]: Standing with coat on in a line—give me a break—with my back

to the camera. I have no idea who she is. What she did is—it’s terrible, what’s going

3

Carroll I, Dkt 6-1 (Cpt.) at 15, ¶ 82.

5

on. So it’s a total false accusation and I don’t know anything about her. And she’s

made this charge against others.

“And, you know, people have to be careful because they’re playing with very

dangerous territory. And when they do that—and it’s happening more and more.

When you look at what happened to Justice Kavanaugh and you look at what’s

happening to others, you can’t do that for the sake of publicity.

“New York Magazine is a failing magazine. It’s ready to go out of business,

from what I hear. They’ll do anything they can. But this was about many men, and

I was one of the many men that she wrote about. It’s a totally false accusation. I have

absolutely no idea who she is. There’s some picture where we’re shaking hands. It

looks like at some kind of event. I have my coat on. I have my wife standing next to

me. And I didn’t know her husband, but he was a newscaster. But I have no idea who

she is—none whatsoever.

“It’s a false accusation and it’s a disgrace that a magazine like New

York—which is one of the reasons it’s failing. People don’t read it anymore, so

they’re trying to get readership by using me. It’s not good.

“You know, there were cases that the mainstream media didn’t pick up. And

I don’t know if you’ve seen them. And they were put on Fox. But there were

numerous cases where women were paid money to say bad things about me. You

can’t do that. You can’t do that. And those women did wrong things—that women

were actually paid money to say bad things about me.

6

“But here’s a case, it’s an absolute disgrace that she’s allowed to do that.”4

Finally, on June 24, 2019, Mr. Trump stated in an interview with The Hill: “I’ll say

it with great respect: Number one, she’s not my type. Number two, it never happened. It never

happened, OK?”5

Carroll I

The Complaint

In November 2019, approximately five months after Mr. Trump’s statements, Ms.

Carroll sued Mr. Trump for defamation in the case now referred to as Carroll I. Her complaint, filed

originally in a state court in New York, in relevant part alleges:

“11. When Carroll’s account was published, Trump lashed out with a series

of false and defamatory statements. He denied the rape. But there was more: he also

denied ever having met Carroll or even knowing who she was. Through express

statements and deliberate implications, he accused Carroll of lying about the rape in

order to increase book sales, carry out a political agenda, advance a conspiracy with

the Democratic Party, and make money. He also deliberately implied that she had

falsely accused other men of rape. For good measure, he insulted her physical

appearance.

“85. In the June 21 statement, Trump falsely stated that he did not rape

4

Id. at 17, ¶ 91.

5

Id. at 19, ¶ 97.

7

Carroll.

“86. In the June 21 statement, Trump falsely stated that he had never met

Carroll.

“87. In the June 21 statement, Trump falsely implied and affirmatively

intended to imply that he had no idea who Carroll was.

“88. In the June 21 statement, Trump falsely implied and affirmatively

intended to imply that Carroll had invented the rape accusation as a ploy for

increased book sales.

“89. In the June 21 statement, Trump falsely implied and affirmatively

intended to imply that Carroll invented the rape accusation to carry out a political

agenda.

“90. In the June 21 statement, Trump falsely implied and affirmatively

intended to imply that Carroll invented the rape accusation as part of a conspiracy

with the Democratic Party.

* * *

“93. In the June 22 statement, Trump falsely stated that he did not rape

Carroll.

“94. In the June 22 statement, Trump falsely stated that he had no idea who

Carroll was.

“95. In the June 22 statement, Trump falsely implied and affirmatively

intended to imply that Carroll had falsely accused other men of sexual assault.

“96. In the June 22 statement, Trump falsely implied and affirmatively

8

intended to imply that Carroll had been paid money to invent the rape accusation

against him.

* * *

“100. In the June 24 statement, Trump falsely stated that he did not rape

Carroll.

* * *

“116. Trump’s other defamatory statements about Carroll in June 2019 – that

she had fabricated the rape accusation to increase her book sales, to carry out a

political agenda, as part of a conspiracy with the Democratic Party, or in exchange

for payment-rested on the express or deliberately – rested on the express or

deliberately-implied premise that Carroll’s underlying accusation was false. Because

Trump knew that the accusation was true, he also knew that his other statements

about Carroll were false.”6

Mr. Trump’s Answer

Mr. Trump served an answer, meaning a responsive court pleading, in Carroll I. His

response to each of the complaint’s allegations quoted above was that he “[d]enies the allegations

contained in [the corresponding paragraph of the complaint].”7 He asserted also an affirmative

6

Id. at 3,¶ 11, 16-17, ¶¶ 85-90, 18, ¶¶ 93-96, 20, ¶ 100, 22, ¶ 116.

7

Carroll I, Dkt 14-69 (Def. Answer), 1 ¶ 11, 6 ¶¶ 85-90, 7, ¶¶ 93-96, 100, 9 ¶ 116.

9

defense that “[t]he alleged [June 2019] defamatory statements are true.”8 He did not elaborate on

his denials of Ms. Carroll’s allegations or on his affirmative defense in his answer. He said nothing

more in his answer in Carroll I about Ms. Carroll’s allegations.

Mr. Trump’s October 12, 2022 Statement

On August 8, 2022, more than three months before the effective date of the ASA, Ms.

Carroll’s counsel announced privately to her adversaries and to the Court that Ms. Carroll would sue

Mr. Trump for damages for the alleged rape itself, as distinguished from the allegedly defamatory

statements of June 2019, once the ASA became effective on November 24, 2022. That

announcement was filed publicly on September 20, 2022.

On the morning of October 12, 2022, this Court denied for the second time Mr.

Trump’s motion to substitute the United States for him as the defendant in Carroll I and it denied

his motion to stay the action.9 That night, Mr. Trump issued the following statement on his social

media outlet:

“This ‘Ms. Bergdorf Goodman case’ is a complete con job, and our legal system in

this Country, but especially in New York State (just look at Peekaboo James), is a

broken disgrace. You have to fight for years, and spend a fortune, in order to get your

reputation back from liars, cheaters, and hacks. This decision is from the Judge who

was just overturned on my same case. I don’t know this woman, have no idea who

8

Id. at 11,¶ 150.

9

Carroll I, Dkt 96; Carroll, 2022 WL 6897075 at *7.

10

she is, other than it seems she got a picture of me many years ago, with her husband,

shaking my hand on a reception line at a celebrity charity event. She completely made

up a story that I met her at the doors of this crowded New York City Department

Store and, within minutes, ‘swooned’ her. It is a Hoax and a lie, just like all the other

Hoaxes that have been played on me for the past seven years. And, while I am not

supposed to say it, I will. This woman is not my type! She has no idea what day, what

week, what month, what year, or what decade this so-called ‘event’ supposedly took

place. The reason she doesn’t know is because it never happened, and she doesn’t

want to get caught up with details or facts that can be proven wrong. If you watch

Anderson Cooper’s interview with her, where she was promoting a really crummy

book, you will see that it is a complete Scam. She changed her story from beginning

to end, after the commercial break, to suit the purposes of CNN and Andy Cooper.

Our Justice System is broken along with almost everything else in our Country. Her

lawyer is a political operative and Cuomo crony who goes around telling people that

the way to beat Trump is to sue him all over the place. She is suing me on numerous

frivolous cases, just like this one, and the court system does nothing to stop it. In the

meantime, and for the record, E. Jean Carroll is not telling the truth, is a woman who

I had nothing to do with, didn’t know, and would have no interest in knowing her if

I ever had the chance. Now all I have to do is go through years more of legal

nonsense in order to clear my name of her and her lawyer’s phony attacks on me.

11

This can only happen to ‘Trump’!”10

Carroll II

Within ten minutes after the ASA became effective, on November 24, 2022, Ms.

Carroll filed Carroll II against Mr. Trump. In addition to her claim under the ASA for damages for

the alleged rape, Ms. Carroll sued for common law defamation based on allegedly false and

defamatory statements about her contained in Mr. Trump’s October 12, 2022 statement.11

The Pending Motion

Mr. Trump seeks dismissal on summary judgment of Ms. Carroll’s defamation claim

based on his October 12, 2022 statement. He argues that the alleged defamatory statements in his

October 12 statement “are protected by the absolute litigation privilege under N.Y. Civ. Rights Law

§ 74” because “in the October 12, 2022 [s]tatement, [he] was merely writing about Plaintiff’s

pending lawsuit against him (Carroll I), while referencing Carroll’s claims in Carroll I, his positions

taken in Carroll I, and background information concerning Carroll I.”12

10

Dkt 81 (Kaplan Decl.) ¶ 4, Dkt 81-2 (Ex. 2).

11

The portions of Mr. Trump’s October 12, 2022 statement that are not statements of or about

Ms. Carroll are not part of her defamation claim. Mr. Trump’s statement is reproduced

above in full for purposes of resolving this motion.

12

Dkt 67 (Def. Mem.) at 1.

12

Discussion

Mr. Trump’s argument fails for two reasons. First, his October 12 statement is not

a “report of any judicial proceeding.” Second, even if his October 12 statement were a report of a

judicial proceeding within the meaning of Section 74 of the New York Civil Rights Law, he has not

demonstrated that it was a “fair and true report of any judicial proceeding.”

The Absolute Litigation Privilege Under Section 74 of the New York Civil Rights Law

“New York law recognizes certain privileges that shield an individual from liability

for defamation.”13 At common law, the “litigant’s privilege” shields “one who publishes libelous

statements in a pleading or in open court for the purpose of protecting litigants’ zeal in furthering

their causes.”14 “[A] statement made in the course of a judicial proceeding is absolutely privileged

under New York common law so long as it is considered material and pertinent to the litigation.”15

This absolute litigation privilege does not extend to out-of-court statements. Out-of-court statements

instead are dealt with by Section 74 of the New York Civil Rights Law, which creates what often

is called the “fair report privilege.” And it is important to note that “[t]he [absolute litigation]

privilege for in-court statements is considerably broader in scope than that for out-of-court reports

13

Sheindlin v. Brady, 597 F. Supp. 3d 607, 629 (S.D.N.Y. 2022).

14

D’Annunzio v. Ayken, Inc., 876 F. Supp. 2d 211, 217 (E.D.N.Y. 2012) (emphasis added)

(quoting Bridge C.A.T. Scan Assocs. v. Ohio-Nuclear Inc., 608 F. Supp. 1187, 1195

(S.D.N.Y. 1985)).

15

Id.

13

relating to the proceedings.”16

As stated above, Section 74 in pertinent part provides that “[a] civil action cannot be

maintained against any person . . . for the publication of a fair and true report of any judicial

proceeding . . . .”17 “The purpose of providing immunity to fair and true reports of judicial

proceedings is said to be to encourage the dissemination of information concerning the judicial

branch of government and thereby to serve the public interest ‘in having proceedings of courts of

justice public, not secret, for the greater security thus given for the proper administration of

justice.’”18 Originally “a qualified privilege for newspapers publishing ‘a fair and true report’ of ‘any

judicial, legislative, or other public official proceedings,’” the law was amended in 1930 “to make

the privilege absolute” and ten years later “was extended from newspapers to ‘any person, firm or

corporation.’”19

Mr. Trump’s Statement Is Not a “Report of a Judicial Proceeding”

Mr. Trump argues that his October 12 statement is privileged under Section 74

16

Long v. Marubeni Am. Corp., 406 F. Supp. 2d 285, 294 (S.D.N.Y. 2005).

17

N.Y. Civ. Rights Law § 74.

18

D’Annunzio, 876 F. Supp. 2d at 217 (citation omitted); see also Ctr. for Med. Progress v.

Planned Parenthood Fed’n of Am., 551 F. Supp. 3d 320, 328 (S.D.N.Y. 2021), aff’d sub

nom. Daleiden v. Planned Parenthood Fed'n of Am., No. 21-2068-CV, 2022 WL 1013982

(2d Cir. Apr. 5, 2022) (“The New York legislature enacted this statute in order to avoid

stifling ‘an active, thriving, and untrammeled press’ and to ensure that the press receive

‘broad protection.’”) (quoting Idema v. Wagner, 120 F. Supp. 2d 361, 365 (S.D.N.Y. 2000)

(citation omitted), aff’d, 29 F. App’x 676 (2d Cir. 2002)).

19

Cholowsky v. Civiletti, 69 A.D.3d 110, 114 (2d Dept. 2009) (citations omitted).

14

because it was nothing more than a summary and/or restatement of the allegations he made and

positions he asserted in his Carroll I answer.20 Specifically, he contends that his statement merely

summarized and/or repeated his denials and affirmative defense in relation to Ms. Carroll’s

allegations that he (1) falsely stated he did not rape her, (2) falsely stated he did not know who she

was, and (3) falsely implied that she invented the rape accusation in order to increase her book

sales.21 Mr. Trump contends also that his statement was about Carroll I because of two references

it contains: (1) a portion of the first sentence of his statement that “[t]his ‘Ms. Bergdorf Goodman

case’ is a complete con job”, and (2) the third sentence of his statement that “[t]his decision is from

the Judge who was just overturned on my same case.”22 Neither of these references, considered

individually or together, nor his statement as a whole, brings the statement within the meaning of

“report of any judicial proceeding” under Section 74.

The standard to determine “whether a report qualifies for the fair report privilege is

whether ‘the ordinary viewer or reader’ can ‘determine from the publication itself that the

publication is reporting on [a judicial] proceeding.’”23 “In other words, ‘[i]f the context in which the

statement [is] made make[s] it impossible for the ordinary viewer [or reader] to determine whether

20

Dkt 67 (Def. Mem.) at 4-5.

21

Id. at 4.

22

Dkt 81 (Kaplan Decl.) ¶ 4, Dkt 81-2 (Ex. 2).

23

Kinsey v. New York Times Co., 991 F.3d 171, 178 (2d Cir. 2021) (alteration in original)

(quoting Fine v. ESPN, Inc., 11 F. Supp. 3d 209, 216 (N.D.N.Y. 2014)).

15

[the publication] was reporting on a judicial proceeding, the absolute privilege does not apply.’”24

As another court in this Circuit explained:

“An overlap between the subject matter of the report and the subject matter

of a proceeding does not suffice; the ordinary viewer or reader must be able to

determine from the publication itself that the publication is reporting on the

proceeding. . . . Thus, there must be some perceptible connection between the

challenged report and the[] proceeding. . . . How ‘direct’ this connection must be has

not been clearly defined. . . . And, in light of the broad construction of § 74, . . .

reports that bear a more attenuated relationship to a proceeding have been deemed

sufficiently connected. [(citing cases)]

“However, a report’s mere mention of [a judicial] proceeding does not

automatically extend the privilege to an entire publication; the privilege may apply

to some portions of a report and not others. . . . If context indicates that a challenged

portion of a publication focuses exclusively on underlying events, rather than [a

judicial] proceeding relating to those events, that portion is insufficiently connected

to the proceeding to constitute a report of that proceeding.. . . Furthermore, [t]he

privilege does not extend to commentary on the proceeding or to additional facts not

established in the proceedings.”25

Nothing about the content or context of Mr. Trump’s statement made it a “report” of

24

Id.(alterations in original) (quoting Cholowsky, 69 A.D.3d at 114-15).

25

Fine, 11 F. Supp. at 216-18 (internal quotation marks and citations omitted).

16

a judicial proceeding. The statement as a whole “does not even purport to be a report of [a judicial

proceeding].”26 Instead, it is an amalgamation of Mr. Trump’s personal views and comments on a

wide range of subjects, including the legal system of the United States and of New York, this Court,

Ms. Carroll and her rape accusation against him, CNN and its journalist Anderson Cooper, and Ms.

Carroll’s counsel. “[T]he way [it] is stylized . . . belies the notion that [Mr. Trump] was even

attempting to provide a fair and true report of a judicial proceeding.”27

As noted, the entire statement contains only two references to any judicial proceeding:

(1) a statement that “[t]his ‘Ms. Bergdorf Goodman’ case is a complete con job”, and (2) the

reference to a decision of this Court, without specifying which decision or stating anything more

about it other than that it came “from the Judge who was just overturned on my same case.”28 When

viewed in the context of the statement as a whole, these two references do not qualify his statement

as a report of either Carroll I or of this Court’s (unidentified) decision. The rest of the statement (1)

expresses Mr. Trump’s views on the legal system in the United States and in New York, (2) contains

26

Corp. Training Unlimited, Inc. v. Nat’l Broad. Co., 868 F. Supp. 501, 508-09 (E.D.N.Y.

1994).

27

Id at 509.

28

Dkt 81 (Kaplan Decl.) ¶ 4, Dkt 81-2 (Ex. 2).

Based on the date of Mr. Trump’s statement, his reference to “[t]his decision” (“This

decision is from the Judge who was just overturned on my same case.” Id. (emphasis

added)) possibly refers to this Court’s decision issued earlier that day in which the Court

denied for the second time Mr. Trump’s motion to substitute the United States for him as

the defendant in Carroll I and denied his motion to stay the action. Carroll I, Dkt 96;

Carroll, 2022 WL 6897075 at *7. The reference to being “overturned on my same case”

likely refers to the Second Circuit’s reversal in September 2022 of this Court’s decision on

whether Mr. Trump was an “employee” of the United States within the meaning of the

Westfall Act. Carroll v. Trump, 49 F.4th 759 (2d Cir. 2022).

17

statements about Ms. Carroll and the substance of her rape accusation, including, inter alia, that

“[s]he completely made up a story that [he] met her at the doors of this crowded New York City

[d]epartment [s]tore” and that “[i]f you watch Anderson Cooper’s interview with her, where she was

promoting a really crummy book, you will see that it is a complete Scam”, and (3) makes accusations

against Ms. Carroll’s counsel.29 The passing references in Mr. Trump’s statement to Carroll I and

an unidentified decision of this Court would not give an ordinary reader the impression that the

statement is a report of a judicial proceeding.30

Mr. Trump nonetheless contends that these two references suffice to demonstrate that

he “was clearly speaking of the Carroll I case when he made the October 12, 2022 [s]tatement.”31

He overlooks, however, that his comments about Ms. Carroll, the allegedly defamatory portions of

his statement, “focus[] exclusively on underlying events” – namely, the substance of Ms. Carroll’s

rape accusation – “rather than a[] [judicial] proceeding relating to those events.”32 It is unclear, for

29

Id.

30

Corp. Training Unlimited, Inc., 868 F. Supp. at 509 (determining that the Section 74

privilege did not apply to a televised report broadcast where “the references to the . . . court

proceedings occur mostly in passing and only towards the end of the [b]roadcast”).

31

Dkt 67 (Def. Mem.) at 15.

32

Fine, 11 F. Supp. 3d at 217; see also Easton v. Pub. Citizens, Inc., No. 91-cv-1639 (JSM),

1991 WL 280688, at *7 (S.D.N.Y. Dec. 26, 1991), aff’d sub nom., 969 F.2d 1043 (2d Cir.

1992) (“This part of the sentence [(in the report)] indicates the conclusion to be drawn based

on the facts presented in the case studies. Because it is clearly the author’s analysis and

commentary it is not protected by Section 74.”); Karp v. Hill & Knowlton, Inc., 631 F. Supp.

360, 363 (S.D.N.Y. 1986) (“[Defendant’s] one word assessment of the Second Circuit’s

opinion does not publish that opinion, or otherwise expose the public to the workings of the

judicial system. Rather, it conclusionally evaluates the circuit court’s opinion. The Civil

Rights Law does not protect such bald-faced commentary about the judicial branch and the

proceedings therein.”).

18

example, whether his statement that Ms. Carroll “completely made up a story that [he] met her” at

a New York department store “and, within minutes, ‘swooned’ her,” refers to Ms. Carroll’s

allegations in her complaint in Carroll I, or to a source separate from any judicial proceeding.33 The

disconnect between the references to Carroll I and his allegedly defamatory statements about Ms.

Carroll make it impossible for an ordinary reader “to determine from the publication itself that the

publication is reporting on the proceeding.”34

Summary Judgment Would be Inappropriate Even if Mr. Trump’s Statement Were a Report of a

Judicial Proceeding

Even if Mr. Trump’s statement were a report of a judicial proceeding within the

meaning of Section 74, Mr. Trump has failed to establish as a matter of law that his statement is a

“fair and true” report of a judicial proceeding.

“A report may be considered ‘fair and true’ under Section 74 if its substance is

substantially accurate. . . . A report cannot be said to be ‘substantially accurate,’

however, if it would have a ‘different effect’ on the mind of the recipient than the

‘actual truth.’ In other words, Section 74 does not afford protection if the specific

statements at issue, considered in their context, ‘suggest[ ] more serious conduct than

33

See Corp. Training Unlimited, Inc., 868 F. Supp. at 510 n.6 (“So long as the format of a

program makes it impossible for the ordinary viewer to determine whether defendant was

reporting on a trial or simply from interviews and independent research, the absolute

statutory privilege does not attach.”).

34

Fine, 11 F. Supp. 3d at 216.

19

that actually suggested in the official proceeding.’”35

“When a report of a pleading is the subject of a request for immunity under section

74, a comparison of the pleading and the subsequent report of that pleading is the starting point for

the analysis.”36 Mr. Trump argues that his statement is a “fair and true” report because “all that he

was doing [in his statement] was summarizing and/or restating his allegations (i.e., his denials and

affirmative defenses) asserted in his [a]nswer filed in Carroll I.”37 A comparison of his comments

about Ms. Carroll in his October 12 statement and his assertions in his answer in Carroll I, however,

reveals that “a reasonable jury could find that [his October 12] statement had a different effect on

[a] reader than [Mr. Trump’s answer filed in Carroll I]”38 and/or that his statement “go[es] well

beyond anything reasonably suggested by [his answer].”39

Mr. Trump’s answer consists of summary denials of Ms. Carroll’s allegations and an

affirmative defense that his allegedly defamatory statements issued in June 2019 are true. His

comments about Ms. Carroll in his October 12 statement, by contrast, state much more than that he

denies Ms. Carroll’s allegations. For instance, Mr. Trump in his Carroll I answer “[d]enies the

35

Calvin Klein Trademark Tr. v. Wachner, 129 F. Supp. 2d 248, 253 (S.D.N.Y. 2001)

(alteration in original) (quoting Daniel Goldreyer, Ltd. v. Van de Wetering, 217 A.D.2d 434,

436 (1st Dept.1995)) (citing Holy Spirit Assn. v. New York Times Co., 49 N.Y.2d 63, 67

(1979); Wenz v. Becker, 948 F.Supp. 319, 324 (S.D.N.Y.1996)).

36

Karp, 631 F. Supp. at 363.

37

Dkt 67 (Def. Mem.) at 15-16.

38

Pisani v. Staten Island Univ. Hosp., 440 F. Supp. 2d 168, 177–78 (E.D.N.Y. 2006).

39

Calvin Klein Trademark Tr., 129 F. Supp. at 253.

20

allegation” that he “had recognized Carroll on sight at [a New York department store].”40 In his

October 12 statement, he does not just deny recognizing or knowing Ms. Carroll. Instead, he states:

“I don’t know this woman, have no idea who she is, other than it seems she got a

picture of me many years ago, with her husband, shaking my hand on a reception line

at a celebrity charity event. She completely made up a story that I met her at the doors

of this crowded New York City Department Store and, within minutes, ‘swooned’

her. It is a Hoax and a lie, just like all the other Hoaxes that have been played on me

for the past seven years. . . . She has no idea what day, what week, what month, what

year, or what decade this so-called ‘event’ supposedly took place. The reason she

doesn’t know is because it never happened, and she doesn’t want to get caught up

with details or facts that can be proven wrong.”41

As another example, Mr. Trump in his Carroll I answer “[d]enies the allegation” that

“[i]n [his] June 21[, 2019] statement, [he] falsely implied and affirmatively intended to imply that

Carroll had invented the rape accusation as a ploy for increased book sales.”42 In his October 12

statement, he does not simply deny the allegation that he falsely implied that Ms. Carroll invented

40

Carroll I, Dkt 14-69 (Def. Answer), 2 ¶ 13. See also Dkt 67 (Def. Mem.) at 16 (citing Mr.

Trump’s other denials in his answer of Ms. Carroll’s allegations that he recognized and/or

knew Ms. Carroll and/or that he falsely stated in his June 2019 statements that he had no

idea who Ms. Carroll was).

41

Dkt 81 (Kaplan Decl.) ¶ 4, Dkt 81-2 (Ex. 2).

42

Carroll I, Dkt 14-69 (Def. Answer), 6 ¶ 88. See also Dkt 67 (Def. Mem.) at 16 (citing Mr.

Trump’s other denials in his answer of Ms. Carroll’s allegations related to Mr. Trump’s

allegedly defamatory June 2019 statements that Ms. Carroll fabricated the rape accusation

to increase her book sales).

21

the accusation to increase her book sales. Nor does he merely repeat or summarize his affirmative

defense that his statement in June 2019 that Ms. Carroll “is trying to sell a new book” is true.43

Instead, he states that “[i]f you watch Anderson Cooper’s interview with [Ms. Carroll], where she

was promoting a really crummy book, you will see that it is a complete Scam. She changed her story

from beginning to end, after the commercial break, to suit the purposes of CNN and Andy Cooper.”44

The contrasts between Mr. Trump’s assertions in his Carroll I answer and his October

12 statement show that a reasonable juror could find that his statement had a different effect on a

reader than his denials and affirmative defense in his answer. For one, “a reasonable juror could find

that [Mr.] Trump was complaining of a far broader and more corrosive conspiracy than anything that

43

Carroll I, Dkt 6-1 (Cpt.) at 15, ¶ 82.

44

Dkt 81 (Kaplan Decl.) ¶ 4, Dkt 81-2 (Ex. 2).

Mr. Trump contends that his reference to Ms. Carroll’s interview with Anderson Cooper in

his October 12 statement does not prohibit the application of the § 74 privilege because (1)

Ms. Carroll does not allege this statement to be defamatory as she “does not attribute any

falsity to Trump’s reference to this interview”, and (2) “the Anderson Cooper interview was

inextricably intertwined with the Carroll I [c]omplaint” and therefore “at the very least, was

a description of background material regarding his positions taken in Carroll I.” Dkt 67

(Def. Mem.) at 8, 16. See also Riel v. Morgan Stanley, No. 06-cv-524 (TPG), 2007 WL

541955, at *10 (S.D.N.Y. Feb. 16, 2007), aff’d sub nom., 299 F. App’x 91 (2d Cir. 2008)

(“The protections of section 74 extend to pleadings, transcripts, live proceedings and the

release by the parties of background material regarding their positions in the case.”). The

Court need not and does not now address this argument in light of its determination that

summary judgment is inappropriate regardless of the reference to the Anderson Cooper

interview. It bears mention, however, that the allegedly defamatory aspect of Mr. Trump’s

reference to that interview comes not from the reference to the interview itself, but from his

statement that Ms. Carroll “changed her story from beginning to end” during the interview

where she was promoting her book. Dkt 81 (Kaplan Decl.) ¶ 4, Dkt 81-2 (Ex. 2); see also

Dkt 38 (Motion to Dismiss Op.) at 25, Carroll, 2023 WL 185507, at *11 (“Drawing all

reasonable inferences in favor of plaintiff, the October 12 statement on the whole can be

construed as Ms. Carroll falsely accusing Mr. Trump of rape in order to promote her book

and increase its sales.”).

22

was at issue in Carroll I in October 2022,’ including based on his statements that Ms. Carroll

“completely made up a story” that is a “Hoax” and “changed her story from beginning to end [(in an

interview where she was promoting her book)]. . . to suit the purposes of CNN and And{ferson]

Cooper,” along with his comments about the judiciary and Ms. Carroll’s counsel.”

The Court need not and does not now decide the ultimate issue of whether Mr. Trump’s

statement is or is not a “fair and true” report of a judicial proceeding as a matter of law. It suffices for

the purpose of denying summary judgment that a reasonable jury could find so as a matter of fact.”

Conclusion

For the foregoing reasons, Mr. Trump’s motion for partial summary judgment (Dkt 66)

is denied.

SO ORDERED.

Dated: March 28, 2023

Lewis Af Kaplan

United Statés District Judge

45

Dkt 79 (Pi. Mem.) at 16.

46

Dkt 81 (Kaplan Decl.) § 4, Dkt 81-2 (Ex. 2).

47

Pisani, 440 F. Supp. 2d at 178 (“{B]Jecause the Court finds that a reasonable jury could

decide that the Hospital staternent was not a fair and true report, the Court cannot conclude

that, as a matter of law, the Hospital statement is protected by the judicial proceeding

privilege.”); Calvin Klein Trademark Tr., 129 F. Supp. 2d at 253 (“The Court therefore finds

that Section 74 immunity is, at best, ajury question and cannot support summary judgment

in plaintiffs’ favor.’”).