Trump vs. Carroll: Headed for a Trilogy?

When a jury hits you for a $5 million defamation verdict, the conventional wisdom is to shut up. Not so for Donald Trump. On top of efforts to stretch our criminal justice system to the breaking point, he’s now testing the limits of First Amendment law.

In June 2019, E. Jean Carroll published an article alleging that Donald Trump sexually assaulted her. Trump denied he had ever met Carroll, accused her of attempting to use the publicity to sell her latest book, and said she was “totally lying” to further a political agenda. Carroll sued for defamation and sexual battery. In May 2023, a Southern District of New York jury found Trump liable for both and awarded Carroll $5 million in damages.

A follow-up trial focused solely on damages owed to Carroll as a result of additional defamatory statements Trump made in 2022 after Judge Lewis A. Kaplan ruled that the earlier jury verdict “plainly established that Mr. Trump’s 2019 statements were false,” with the “substantive content” of Trump’s defamatory 2022 statement being “identical” to the 2019 statement. A jury awarded Carroll an additional $83 million, including $65 million in punitive damages.

Defamation is a tort, like any other personal injury claim. The primary purpose of tort law is to make a plaintiff whole by substituting cold hard cash for the loss of a tangible or intangible possession: one’s car, body, reputation, or privacy. The outcome of the first trial reflected the jury’s view that Carroll deserved a substantial payment for the anguish she suffered. But tort law has a second purpose: deterrence. Juries can also assess damages to send a message to the defendant—and the public—that morally blameworthy conduct will not be tolerated. Hence, the eye-popping second verdict.

Carroll traded an injury to her reputation and psyche for generational wealth, and Trump learned an expensive lesson. But Trump was never a great student. Two months after the second trial, he was back at it on CNBC’s “Squawk Box,” claiming: “I have no idea who she is, except one thing, I got sued.” Carroll’s attorney, Roberta Kaplan, fired back that a third trial may be in order. Just what will that accomplish, and can a court ensure that the third time sticks?

On the one hand, Trump’s statements are mere echoes of his earlier accusations. It’s all been said, heard, and done. Trump’s fans won’t stop believing, and unless Carroll meets someone who was living under a rock between 2019 and 2024, fresh statements will have no further effect on her reputation in the community.

On the other hand, it seems callous to suggest that Carroll must suffer the sting of repeated false attacks without recourse. The problem is that defamation verdicts rarely address future conduct of the parties. Therefore, neither verdict in the two Carroll cases placed any limitation on Trump going forward. But if $88 million can’t deter Trump, perhaps another approach is warranted: a gag order.

A prerequisite for granting a plaintiff an injunction is “the plaintiff’s demonstration that the remedy at law, here damages, will be inadequate and that without an injunction, the defendant’s wrong will cause [her] irreparable injury.” If Carroll can demonstrate that continued public attacks compound her trauma and prevent her—and the public—from moving on, a court might entertain a gag order in the form of a permanent injunction barring Trump from rehashing the subject matter of the original lawsuit. According to Carolyn Schurr Levin, a First Amendment practitioner at Miller Korzenik Sommers Rayman LLP, that would be an extraordinary recourse: “Injunctions in defamation cases have long been disfavored due to their tendency to chill free speech, but some courts have gone there.”

For example, in Balboa Island Village Inn, Inc. v. Lemen, the California Supreme Court found gag orders to be valid in certain defamation cases if they are “properly limited” to speech already found to lack First Amendment protection. If imposed against Trump after a third trial, future violations could land him in contempt of court. At least two Circuit Courts have adopted this “modern rule” of prior restraint.

Trump himself is no stranger to gag orders. He was recently under one in his New York criminal trial—and was found to have violated it 10 times. While New York limits fines to a maximum of $1,000 per contempt violation, it authorizes up to 30 days’ imprisonment. Justice Juan Merchan threatened to put Trump behind bars if he continued to thumb his nose at the order directing him not to publicly comment on jurors, witnesses, or other people involved in the case. “It’s important to understand that the last thing I want to do is to put you in jail,” the judge said. “You are a former president of the United States and possibly a future president, as well. . . . There are many reasons why incarceration is truly a last step for me.”

Should Carroll decide to make it a trilogy, a gag order may be the only realistic recourse. Having overseen the prior cases, Judge Kaplan would likely be tasked with crafting an appropriately narrow injunction. While there is no Second Circuit precedent to guide him, federal courts possess inherent authority to hold an individual in civil contempt and to impose penal sanctions for violations.

While it may be possible to threaten Trump with a trip to the pokey, there remains the question: Would it be wise? Trump will no doubt take the position that he’s entitled to continue speaking as a candidate for the highest office in the land, triggering yet another constitutional crisis.

Perhaps tort law can’t solve every societal problem, but at some point, Carroll is going to have quite a bit of Donald Trump’s money in her own pocket.