ABSTRACT
I start this chapter with a tale of two scandals that resulted in very different legal responses. As this chapter was being completed, media coverage in the USA and beyond was dominated by accusations of sexual assault made by several women against conservative US Supreme Court nominee Brett Kavanaugh. Plainly all the allegations were seriously defamatory, but no libel threats were issued by the nominee (even in respect of allegations not aired in the hearing itself): it is likely that, as a public figure, he would have to have shown that such allegations had been published by the media with ‘actual malice’ – knowledge of their falsity or with reckless disregard for their truth – under the famous decision in New York Times v Sullivan (1964), something that is extremely hard to establish. The episode has obvious echoes of the series of allegations of various forms of sexual misconduct made against President Donald Trump by numerous women; again, no defamation proceedings have been forthcoming. The scandal did not prevent the nomination of Kavanaugh to the Supreme Court but may haunt him for years; the law, withdrawn from the scene, has played no part.
