The story in the National Enquirer that Ted Cruz had affairs with five women has had at least one beneficial outcome and that is it sheds some light on how the political gossip machine operates. Michael Calderone decribes it as a massive game of telephone and takes us through the timeline of how the rumors went from person to person and quickly became a complicated web where it has become impossible to figure out who originated the story. It seems like the story has been circulating for months, and was at one time being pushed by the Marco Rubio camp at a time when he and Cruz were vying for the second place slot behind Trump.
Hearing the same story from many different sources tempts people to think that there must be some truth to it since it implies multiple sources but one must be very cautious. It is entirely possible that it is just one rumor started by a single person that ricocheted rapidly round the small echo chamber that is the political media class.
I thought that Cruz had issued a vigorous and unequivocal denial but those who parse these things carefully suggest that it was not so and that he has left himself some wiggle room for it being true. I have to admit that I don’t see it but these shades of meaning and ‘non-denial denials’ are too subtle for me.
But now the story is out there and the question is what Cruz should do besides denying it. The obvious thing that people expect him to do if the story is false is for him or the identified women to sue the tabloid for defamation. Ronn Blitzer discusses what is involved in winning a defamation suit in this particular case.
- That the statement is false. No matter how damaging the sex scandal may be, if the story is true, Cruz wouldn’t have a case.
- It has to be made public to someone other than the person who said it and the person it’s about. Publishing it in the Enquirer for the world to see certainly satisfies this requirement.
- The defamatory statement has to be someone’s fault, and you have to show whose fault. Since the Enquirer published it, it would be their fault for getting it wrong.
- The statement actually caused harm. This one could be tough to measure. If Cruz’s poll numbers drop dramatically and his campaign enters a downward spiral, that could be an indication that he was harmed by the story, but the defense could be that it happened for other reasons. If Cruz ends up winning the nomination, it would be tougher to argue that he was harmed. Unless, of course, his marriage suffers, in which case that Cruz could argue that he suffered harm.
- Now, for regular people, all you need are the four previous elements. But for public figures like Cruz, he would have to prove that the statement was made with “actual malice.” This extra requirement came about in the landmark 1964 case New York Times v. Sullivan, which said that the lives of public officials are of public concern, so if a false statement was made by accident, it’s not a problem. Here’s where it gets tricky for Cruz. He would have to show that the Enquirer knew or should have known it was false. If they did and ran int anyway, that could spell trouble.
While Cruz certainly is a public figure, I am not sure of the status of the three identified women who all work for political campaigns and have appeared on TV in that role. Does that constitute being a public figure? The two other women have not been named but are identified as being a teacher and a prostitute which certainly does not make them public figures.
If Cruz does not sue, people may think that it is because the story is true. Roger Stone, a well-known political operative renowned for being sleazy, who supports Donald Trump, and was the only named source in the Enquirer story, is daring Cruz to sue by saying that he won’t because he knows the rumors are true.
But there are good reasons for Cruz not suing, even if he is innocent and thinks he can win. For one thing, it can create political problems for him because it keeps the story in the media for much longer and all manner of extraneous issues can be brought in, whereas he may calculate that it is in his best political interests as far as the campaign is concerned to have the story die as quickly as possible. For another, once he sues, he opens the gates to a close inquiry into many aspects of his private life even if those have little or nothing to do with this case. Few people want their lives put under such a microscope even if they are pretty blameless. So we should not draw any inference of guilt from a decision by him not to sue. The three identified women will have to do similar cost-benefit calculations, as will the other two if they are identified.
On a less serious note, one thing working in Cruz’s favor is that he is so unpleasant that people are incredulous that even one woman would voluntarily choose to have sex with him, let alone five. On the other hand, adding some verisimilitude to the story is that one of his trysts was supposedly in a closet and Cruz has been known to meet people in closets.