Bringing Free Speech Back: Trump Promises To Sue CNN Over Its Biased Coverage Based On Dumbest Legal Theory Ever

from the ken,-is-charles-harder-a-good-lawyer? dept

By way of disclosure, I will mention that (as you may be aware), Charles Harder was the lawyer who represented Shiva Ayyadurai in his lawsuit against us, and who has a decently long history of both threatening and filing lawsuits against media properties — some of which have been more successful than others. Harder appears to have used his reputation for killing off Gawker to get ever more prominent clients, on whose behalf he has sent plenty of laughable threat letters trying to silence obviously protected speech, from Roger Ailes to Harvey Weinstein to Donald Trump. I will leave it as an exercise to the reader to determine if you see a pattern in some of Harder’s clients and the representation he has provided for them.

Apparently the President still employs Harder. Late last week he sent what has to be one of the most ridiculous threat letters I’ve seen (and that’s saying something) to CNN promising to sue the company for its “biased” coverage of the possible Trump impeachment process. Everything about the letter is pretty crazy, especially from a President whose fans like to pretend he he supports free speech. He does not. And Harder’s ridiculous letter makes this clear. The letter doesn’t claim defamation (which would be laughable on its own) but a rather… let’s say “unique”… interpretation of the Lanham Act’s “truth in advertising” aspects to argue that its coverage of the President doesn’t match up with its promises to be “fair and balanced.”

Your website expressly represents to the public, in writing, that you are ?journalists,? ?truth seekers,? ?united by a mission to inform, engage and empower the world,? and you ?stand for excellence in journalism and [your] products.? See (emphasis added). Your slogan is ?The Most Trusted Name in News?. Your Facebook account claims you are ?widely known to be ? the most trusted source for news and information.? Your anchor, Don Lemon, stated on June 6, 2019, as a keynote speaker at Financial Times Live Future of News: ?We don?t profess to be a liberal network, we?re a news network ? we have a commitment to the truth and to facts, which has really been paramount, especially always at CNN.? Mr. Zucker said in an interview with Variety, published on August 2, 2016: ?[O]ur air, as opposed to others?, is truly fair and balanced.? (Emphasis added.)

The letter then goes on to cite the Society of Professional Journalists’ Code of Ethics, claiming that CNN is violating them. This is silly on multiple levels. First of all, Harder seems to ignore a key part of that code of ethics that explicitly states:

The SPJ Code of Ethics is a statement of abiding principles supported by additional explanations and position papers (at that address changing journalistic practices. It is not a set of rules, rather a guide that encourages all who engage in journalism to take responsibility for the information they provide, regardless of medium. The code should be read as a whole; individual principles should not be taken out of context. It is not, nor can it be under the First Amendment, legally enforceable.

Yet, Harder acts as if it’s some sort of legally enforceable document that somehow overrides the 1st Amendment. Which is weird.

From there, Harder cites a new video from notorious misrepresenters Project Veritas as proof that CNN is violating these ethical rules that are not law, and which it’s not at all clear they’re actually violating in the first place. Much of the complaint is whether or not CNN staff is “biased” against the President, and whether or not it lets opinion journalism appear in its “news” coverage.

Of course, this is all particularly hilarious because, as bad as CNN might be on that front, the same would apply doubly so to the President’s favorite TV news station, Fox News, whose own motto is famously (if hilariously) “Fair and Balanced” when it is anything but, and took a famously adversarial position to the previous administration. Keep that in mind when you read this next line in Harder’s letter:

Never in the history of this country has a President been the subject of such a sustained barrage of unfair, unfounded, unethical and unlawful attacks by so-called ?mainstream? news, as the current situation.

It can easily be argued that that isn’t even true when compared to the previous administration and Fox News. And, of course, there’s a long, long history of journalistic outlets targeting opposing Presidents (including being accused (perhaps exaggeratedly) of being responsible for the assassination of President McKinley). The idea that CNN’s coverage of the President is somehow unique in history is hilarious and unsupported by reality.

As for the actual legal claims they’re vague, but utter nonsense:

Your actions are in violation of the Lanham Act (15 U.S.C. § 1051 et seq.), among other applicable laws, by constituting misrepresentations to the public, to your advertisers, and others. Accordingly, my clients intend to file legal action against you, to seek compensatory damages, treble damages, punitive damages, injunctive relief, reimbursement of legal costs, and all other available legal and equitable remedies, to the maximum extent permitted by law.

As well known, well respected lawyer Ted Boutrous stated on Twitter, this entire letter is silly:

CNN’s response to the letter was pretty short and succinct:

?This is nothing more than a desperate PR stunt and doesn?t merit a response, CNN said in a statement.

Exactly. While Harder’s letter promises a lawsuit on this, it would not be surprising if no such lawsuit materializes, as it’s an almost guaranteed loser. As law professor Alexandra Roberts points out, while Harder’s Lanham Act claims are not at all clearly stated, he’s likely (especially given the context of the rest of the letter) suggesting a “false advertising” claim, but for that to be legit, he would have to show commercial harm to President Trump, which would be… quite something to attempt.

Separately, Roberts makes another important point: since the letter isn’t even a standard “cease and desist” threat letter, but rather includes a statement about a planned legal action, CNN (if it so chose) could actually go to court and ask for a declaratory judgment on this matter, effectively forcing Trump/Harder to explain to the court whatever ludicrous legal theory they have, only to almost certainly have it laughed out of court. It looks like CNN won’t bother doing so, but that sure would be fascinating to watch.

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Comments on “Bringing Free Speech Back: Trump Promises To Sue CNN Over Its Biased Coverage Based On Dumbest Legal Theory Ever”

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Anonymous Anonymous Coward (profile) says:


While we shouldn’t forget the military/industrial/espionage complex, we should also recognize the political/corporate/self indulgence complex.

"… but for that to be legit, he would have to show commercial harm to President Trump, which would be… quite something to attempt."

It could be argued that Trump is in fact using his office as a commercial vehicle. It took some fairly damning commentary to get him to remove the G7 summit from his luxury golf club in Miami, and I am not sure this is the only instance of his feathering his own nest from a position of elected power.

James Burkhardt (profile) says:

Re: Complexities

Ah, but Trump has long claimed he is not profiting off the presidency, Which is why it would be "…quite something to attempt" to try to show that President Trump has been commercially impacted by the news coverage. The president’s legal team would have to actually prove an intent to profit off the presidency, which would be super on brand for this White House, arguing in court that he is indeed profiting of a presidency he has been declaring he is not profiting off of.

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Anonymous Coward says:

Re: If he killed off Gawker, he can't be that bad.

Whether or not you agree with the content, the fact that you support the shutting down of a media operation because you dislike the content suggests a fairly healthy disregard for the 1st Amendment.

Many people feel that news sources you like — Fox News, OANN, RT, Sputnik — are also a cesspool of lies and clickbait garbage. How will you feel when they get shut down too?

bhull242 (profile) says:

Re: Re: Re: I’m not saying he’s a predafile...

8chan isn’t a journalistic venture, nor has it ever claimed to be. It doesn’t even fall under a tabloid or parody news site. It’s just a forum with virtually no moderation. It’s never claimed to be a source of factual, or even “factual”, information. It’s nothing like Gawker or Fox News by any measure.

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David says:

Re: Re: Re:

Frankly, that would not be much of a change. It has been a dedicated one-sided publication with clickbait flypaper before the Trump era. But to keep all-hailing Trump, they had to get rid of actual though completely biased political news reporting, similar to how the White House had to get rid of anybody resembling competency, because there just is no way to put lipstick on those pigs of facts.

You had biased news there before. Now you get just obvious garbage.

I was rather surprised to find an opinion piece by Judge Napolitano between all the utter garbage where he explains the meaning of impeachment and that it’s entirely up to the House what it wants to impeach and how to go about it and that it’s nonsense to complain about unfairness because it is not intended to be an adversarial process (and not a legal one but a political one), with the adversarial process being the subsequent trial.

Completely level-headed, factual, correct, and dismantling the hysterics particularly from the White House. Sticking out like a sore thumb from a veggie burger or rather a bottle of Champagne at a dumpster fire. Whenever I look at the Fox News site with "now let’s see you spin this" after a new revelation and finding that they don’t even try but instead engange in smoke screen, I am asking myself what this article is even doing there. Maybe so that anybody of reputation links to them, no idea.

But I digress: by and large, FoxNews is down the drain because all-hailing Trump these days has become incompatible with even biased actual news reporting.

bhull242 (profile) says:

Re: Re: Re: Re:

Here is a (link)[] to the article referenced, along with (another)[] by Napolitano explaining why Trump’s words and actions may constitute impeachable conduct.

They are very good reads, and, IMHO, Napolitano’s best work (which admittedly isn’t saying much).

Regarding impeachment, the Constitution says that the House sets the rules, so Trump has no legal ground to stand on when declaring this part to be illegal, illegitimate, or unconstitutional. Additionally, this part of the process is akin to a prosecutor investigating a crime. Much if not all of the process is done behind closed doors to encourage candor and honesty, and it’s not adversarial. In a criminal case, the defendant doesn’t have a right to “confront their accuser(s)” until a trial is underway, and the same goes for a right to present a defense. Furthermore, that isn’t a constitutional right, so it’s not binding on the House during impeachment proceedings, nor are concepts like “attorney-client privilege”. The adversarial part of the process doesn’t occur until the House approves of some Articles of Impeachment and the process moves to the Senate.

bhull242 (profile) says:

Re: If he killed off Gawker, he can't be that bad.

Look, it is entirely consistent for one to both be glad that Gawker was shut down and believe the way it was shut down was complete BS and inconsistent with the First Amendment. It is also possible for one to hate both Gawker and the lawyer responsible for forcing it to shut down.

I find it appalling that you seem to think that, just because you think he was right on one occasion solely because the target was someone you dislike, he’s “not that bad” despite his apparent inability to understand the law and his apparent desire to shut down journalistic outlets without regards to the First Amendment. Even if you are fully on board with the Gawker thing for legitimate reasons (which doesn’t include personal distaste for Gawker), that could easily be a stopped-clock moment. His subsequent actions suggest that he holds contempt for the First Amendment rights to Freedom of Speech and Freedom of the Press, and that he doesn’t just target “cesspool[s] of lies and clickbait garbage”.

I don’t like Gawker any better than you, but I’m certainly not going to base my opinion of this lawyer based on the fact that he once was responsible for getting it shut down, regardless of the means he used to do so or his subsequent words and actions.

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Anonymous Coward says:

Your actions are in violation of the Lanham Act (15 U.S.C. § 1051 et seq.), among other applicable laws, by constituting misrepresentations to the public, to your advertisers, and others. Accordingly, my clients intend to file legal action against you

Admittedly they didn’t go into detail on exactly which laws were violated (probably because they haven’t figured out how to spin it in the complaint yet), but I don’t see anything in that statement that suggests Trump has standing. For example, even if CNN is misrepresenting things to its advertisers… doesn’t that mean his advertisers would be the ones that would have to sue him?

Also, I’d love to see CNN file for declaratory judgment and drag Trump and Harder into the courtroom to explain themselves.

That One Guy (profile) says:

Re: Re:

Also, I’d love to see CNN file for declaratory judgment and drag Trump and Harder into the courtroom to explain themselves.

While tempting this is pretty clearly just a PR stunt, and as such giving it any sort of serious consideration would be giving it way more respect and attention than it is owed.

Much like when a child is throwing a tantrum because you said ‘no’ to something they wanted the correct response here is to ignore the adult ‘child’ until they get distracted by something else and go away.

Anonymous Coward says:

Re: Re: Re:

I get a strong sense of satisfaction whenever Newegg countersues patent trolls that are stupid enough to go after them – I always picture in my head the troll trying to drop the case and skitter away, and Newegg responding "no, you won’t be getting away that easily…"

I had a similar image of CNN doing that to Trump and Harder, and it made me smile.

That said, you are correct, of course. Let him flail his arms about and cry how it’s soooo not fair.

That One Guy (profile) says:

Re: Re: Re: Re:

Ah, no need to put away that smile just yet, the difference between the two is what the goal of the threat is, and as such the outcome can be the same even if the methods are different.

When it comes to patent trolls the last thing they want is to go to court(unless it’s east texas of course), all they want is easy money via threats of ‘pay us or it will get worse’, and as such Newegg dragging them to court is entirely contrary to what they desire.

On the other hand with what is almost certainly a PR stunt Harder/Trump want publicity, they want attention, and as such taking them to court would be handing them exactly what they wanted, even if they lost in court, as they could whine about how unfair the courts are and how the judge had it in for them or other such garbage.

With the difference in goals not dragging them to court and instead just ignoring them like children throwing a tantrum accomplishes roughly the same goal as taking a patent troll to court in that in both cases you’re doing what the other party doesn’t want you to do, and as such you can get the same sense of satisfaction in both cases, even if the response is directly opposite(going to court vs not going to court).

David says:

Re: Re: Re:

You know, I found it sort of amusing how the Mueller report basically boiled down to Trump most certainly wanting and commanding to obstruct justice but probably nothing prosecutable happened because nobody obeyed him.

But by now he has swapped out personnel in the White House so much that he probably got a few that actually do his bidding rather than what would be legal.

bobob says:

Well, to the extent that having a good idea of what the facts are might create some bias, that’s what having a brain is for. Here, though, useing the word "bias" deliberately equivocates it to mean "judgment," which is something people do everyday just to make decisions.

Harder uses the word "bias" to imply without saying it, that the media was predisposed to to reach a negative judgment about President Agent Orange. Replace the word "bias" by "judgment" or "conclusion" based on evidence and Harder’s argument is even sillier than it appears, since using the proper language to describe what the media is doing is just a description of a journalist’s job, Gather facts and tie things together.

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That One Guy (profile) says:

Re: Re: Re:

It’s a delightful bit of poisoning the well, yes, in attempting to spin the fact that people might be against Trump not because he absolutely earned mockery, disgust, and contempt by his words and actions, but because they were already ‘biased’ against him for unjustified reasons that have nothing to do with said words and actions.

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Tim R (profile) says:

I find this pretty rich coming from the leader of a political party who, during the Obama presidency, were kvetching left and right that the Democrats were trying to bring back the Fairness Doctrine, laying waste to the First Amendment as we knew it.

Things are always fair when it’s your side that’s in charge, I guess.

ECA (profile) says:

almost quit reading..

"Your website expressly represents to the public, in writing, that you are “journalists,” “truth seekers,” “united by a mission to inform, engage and empower the world,” and you “stand for excellence in journalism and [your] products.”"

I quit most of the news, because of all the Coulda, woulds, might haves, and other Finger pointing..

News should just be known facts, and then abit of followup.. Not Multiple explanations of What it might have been that caused the situation..

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Stephen T. Stone (profile) says:


News should just be known facts

It can never be that. Someone must decide what to publish, what to distill out of the mass of available data, and what facts to check. You cannot separate bias from journalism, and you cannot turn all journalism into mere fact recitation as a result.

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James Burkhardt (profile) says:

Re: almost quit reading..

These two facts are both true, and without context mutually exclusive:

Illegal Immigrants are all criminals.

Illegal immigrants commit crimes far less often than the native-born population.

I have to spend time to discuss that the first fact includes the crime of illegal immigration, but the second fact starts counting after entry. Then to determine which statistic to use, I should assess other contextual factors like the history of legal immigration or the wider context of those pushing the first fact have sought to also repeatedly restrict legal immigration on the basis of the first fact, and that the second fact is generally cited by those seeking to increase immigration.

Which of those two facts I cite carries implied opinions, despite just citing a fact.

If I cite a statistic about how many crimes are committed by immigrants in absolute numbers, it tells one story. If I instead talk about how many crimes are committed by immgrants in comparison to the immgrant population and compare those numbers to the native-born population, it tells a different story.

And then there are issues of who is counting, who pays them, how rigorous the fact verification is.

How deep do you go establishing the bonafides of "known facts"? How deep do I dive? Misuse of statistical data uses known facts without context to tell a bad narrative. Framing known facts of history with a modern contexst can be used to tell a bad narrative. By sserting known facts (Nazis called themselves solcialists) and making blind assertions (Socialists are Nazis) without context (The German National socialist workers party was founded by indiviudals seeking to use populist language, and while still very authoritarian discussed the implementation of some minor socialist concepts. These ideas were thrown out when Hitler’s faction took control of the Nazi Party, and were never implemented in Hitler’s Germany) they can tell lies with known facts.

Just the facts journalism on evolving controversies would drop context that helps us actually understand what we are seeing.

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bhull242 (profile) says:

Here’s a quick summary of the letter and its problems:

1) It claims that CNN is violating a set of rules that aren’t actually legally binding—nor could they be—based primarily on a video made by an uncredible source that, even if accurate, doesn’t offer sufficient evidence to prove that CNN actually violated those rules.

2) All of the accusations apply at least as well to outlets like Fox News.

3) It alleges violations of the Lanham Act. As far as I know, to have standing to file a Lanham Act complaint, at least one of the following must be true: the defendant is infringing on the plaintiff’s trademark (which is clearly not the case here); the defendant has produced false advertising that the plaintiff—as a consumer or user—reasonably relied upon (considering how long Trump has been complaint about CNN’s supposed bias, it’d be difficult to believe that he actually relied on their claims of neutrality and the like); the plaintiff has received commercial harm from the defendant’s actions (as a President, Trump would have difficulty proving this without also making him legally vulnerable).

4) While some of what CNN is accused of here may be illegal if true (not making it clear which parts are factual and which are opinion and failing to disclose conflicts of interest), only the FCC or FTC can actually enforce those particular laws, not a private citizen or organization.

5) Almost none of the allegations prove that anything illegal is going on. News outlets can be biased, can make hyperbolic claims in advertising, can state opinions, and have full discretion regarding which stories they can run.

6) The letter doesn’t make it clear what sort of action(s) they want/expect CNN to take. This isn’t a cease-and-desist letter or a don’t-hide-or-destroy-evidence letter. It doesn’t ask for a settlement, either. It asks for a meeting, but it’s not clear what they expect to come of such a meeting.

7) Because it threatens legal action, CNN probably could sue for declaratory judgement if they wanted, and they’d probably win for reasons explained above.

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