Defamation lawsuit a direct hit.

This dizzying election season quietly took another surprising turn this week: The so-called Central Park Five sued Donald Trump for defaming them with a statement he made during the Sept. 10 debate against Kamala Harris in Philadelphia. The Central Park Five, which today understandably prefer to be referred to by the more appropriate nickname “The Exonerated Five”. These are five men who were accused of a series of attacks in Central Park in 1989, including the rape of a woman and several aggravated assaults. At the time, Trump took out full-page ads in several New York newspapers calling for the execution of all five, then teenagers. And all of them were black or Latino.

A confession from the actual rapist years later, confirmed by DNA evidence, led to these men's release in 2002. They received $41 million in compensation from the city of New York after the five sued the city for false arrest and malicious prosecution. But this new complaint alleges that Trump falsely stated during the debate that the men had pleaded guilty to the crimes and that at least one of the victims had died. Neither statement is true. (Four of the five men initially confessed, but the confessions were extracted under duress and none of them pleaded guilty. No victim died as a result of the attacks.) This kind of reckless disregard for the truth, if not deliberate lying, is what it is Stuff from which successful libel lawsuits are made. Public figures like the Exonerated Five must overcome the high hurdle of proving that the defendant acted with knowledge that the defamatory statement was false or with “conscious disregard” for whether the statement was true or false. But given Trump's longstanding and ongoing obsession with the Five, this hurdle is easily overcome – he knows what he's saying. And his recent comments are also part of an ongoing pattern of extreme and outrageous behavior toward these men that courts have consistently found sufficient to support a claim of intentional infliction of emotional distress.

The case raises an interesting question about the intersection of two powerful policies: On the one hand, it is almost impossible to sue someone for defamation over statements made on the campaign trail – a quick look at the recent bombardment of misleading and outright false campaign advertising makes this clear. These contests are painful and it's almost comical to think that one candidate can sue another for making false statements. (There are exceptions: Falsely calling an opponent a murderer, for example, would be a crime.) On the other hand, people who are not directly part of the campaign, like the plaintiffs here, continue to have a strong interest in its reputation. And given the large number of viewers – around 67 million – for the candidates' only debate, the risk of reputational damage is high here. But in a perverse way, Trump's constant lying about everything could cause problems for the plaintiffs. While I think they could still convince a jury that the statements were defamatory and harmful, their actual damages may be less simply because the impact of their reputation based on Trump's untruths may not be as great. At some point, Trump's onslaught of absurd falsehoods may weaken the power of the lie. (But punitive damages could be high given the source of the comments and the egregiousness of the lie.)

As for the emotional distress, the complaint here alleges conduct that spanned the years since Trump began his first campaign against these five men in 1989, with the inaccuracies expressed during the debate being just the most recent incident. This is a smart move by the plaintiffs' attorney (the powerful Philadelphia firm Kline and Specter), because it brings to mind the many years in which Trump has refused to apologize for his actions, thereby adding to the plaintiffs' misery aggravated.

On the merits, the arguments for both defamation and emotional distress are sound – perhaps even unassailable. Ultimately, the plaintiffs will likely receive substantial compensation, as they should.

At this point, it is impossible to predict whether this current reminder of Trump's decades of racism and falsehoods will move voters even more than we already know. But by reminding people of a particularly heated exchange during the debate, it could be. Recall that Harris also referred to the 1973 federal lawsuit against the Trump Organization for alleged racial discrimination in its housing developments in New York. The case ended with a consent order with no admission of guilt, but the case was considered extremely significant at the time. And who can forget the racist birtherism conspiracy that dogged Barack Obama for years until Trump finally admitted he was wrong?

Then there is the possible cumulative effect of one more lawsuit against Trump; and one that may remind voters of the former president's two defamation losses against E. Jean Carroll – jurors didn't believe Trump's statements that he didn't know her, let alone his protestations that he hadn't sexually assaulted her. As in the Carroll case, it is impossible to blame overzealous prosecutors for this latest civil lawsuit. Trump is increasingly turning out to be a serial defendant, both criminally and civilly. He is also a duplicitous defendant: recall that Carroll's second libel suit was based on statements he made after the verdict in the first suit. Again, he seems to have learned nothing from being wrong about the Exonerated Five. So another lawsuit – some 35 years after the event that started all this. The statute of limitations for a defamation claim is unproblematic because the defamatory statement is new. The fate of the emotional distress claim will depend on whether the court believes the recent insult is part of ongoing conduct, which is clearly the case.

Whatever happens next month, Trump will lose again in court over another series of defamations Testify.