Here’s why Kavanaugh should ignore Trump's 'sue for libel' advice: First Amendment expert
A report by the New York Times has reopened an old wound: Supreme Court Justice Brett Kavanaugh’s bitterly divisive confirmation hearings. The Times has reported that, in 2018, the FBI didn’t fully investigate an allegation by Kavanaugh accuser Deborah Ramirez that he thrust his penis at her at a party when they were students at Yale University in the 1980s. And Eugene Volokh, a legal and First Amendment expert who teaches at UCLA, told Law & Crime why he believes it would be a bad idea for Kavanaugh to file a lawsuit for libel or defamation.
Volokh told Law & Crime that in libel cases, there is a high bar: the plaintiff had knowledge that the statement was false or at least was likely false. Further, Volokh said, negative stories tend to disappear from the news — but lawsuits have a way of drawing attention to the allegations.
“This too shall pass, as all news stories do,” Volokh told Law & Crime.
In other words, launching a lawsuit would draw more attention to the allegations in the Times article — after the media had moved to discussing other things. And in the end, Kavanaugh would have an uphill climb when it came to proving libel.