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 https://www.CNN.com/About (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 spj.org) 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:
This is an absolutely ridiculous letter. No serious lawyer would ever think of sending such a frivolous letter making such a baseless threat. https://t.co/omdWCE50fv
— Ted Boutrous (@BoutrousTed) October 18, 2019
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.