Probably a Bad Idea for Kavanaugh to Sue

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Supreme Court Justice Brett Kavanaugh has strenuously denied allegations of sexual assault. But should he sue, as President Donald Trump suggested? That’s probably a bad idea. Professor Eugene Volokh, a First Amendment expert at UCLA, told Law&Crime that it’s rarely in the interest of office holders to sue for libel because the legal standard to prove defamation is high, and the lawsuit will keep the allegation in the public eye.

New York Times article published Saturday reported that before Kavanaugh’s confirmation vote, FBI agents apparently didn’t fully investigate an allegation the justice thrust his penis at schoolmate Deborah Ramirez when they were both students at Yale. They discussed another allegation in which then-classmate Max Stier told the FBI that he saw Kavanaugh pants down at another drunken party. He reportedly said he witnessed Kavanaugh’s friends push the future justice’s penis into the hand of a female student.

The report reignited the contentious debate over Kavanaugh’s confirmation to the Supreme Court. Of course the president was going to weigh in.

Volokh said he didn’t know what Trump was referring to. The Department of Justice has no role in libel cases, he said.

The professor had more to say about a hypothetical lawsuit in which Kavanaugh sued for defamation. He argued the case would likely be a “loser.” There’s a high bar meet for libel: that the defendant had knowledge that the statement is false, or likely false.

There’s there’s the optics of the matter. While the Kavanaugh story is once again at the top of the news cycle, this won’t always be the case.

“This too shall pass as all news stories do, ” Volokh said.

He said that a libel lawsuit will continue to attract attention to the allegations against Kavanaugh.

[Image via Zach Gibson/Getty Images]





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