Trump Campaign Actually Sues TV Station Over Anti-Trump Ad

from the bringing-free-speech-back dept

A few weeks back, we noted that the Trump Campaign was sending threatening letters about a TV ad by the PAC Priorities USA that criticized Trump’s handling of the pandemic. You can see it here:

As we noted, the threat letters only caused a lot more people to watch the ad, and it seemed notable that they only focused on one single line in the ad, and not the rest of it. Now the campaign has, incredibly, made good on the threats and filed suit against at least one TV station, WJFW-NBC in Wisconsin.

The lawsuit is for “common law defamation” and is — like so many Trump or Trump Campaign lawsuits — not about any real legal issue, but mostly about three things: (1) creating chilling effects for others, (2) performing for the Trump base, and (3) fundraising for the campaign. There is no chance this lawsuit gets anywhere. Political advertising is among the most protected under the 1st Amendment, and, in fact, Congress has rules telling broadcasters that they cannot reject political ads from campaigns even if they’re false. Of course, this ad is from a PAC, not the campaign directly, so that rule does not apply directly, but the general 1st Amendment principles still very much apply.

On top of that, there is no way in hell that the clips, as cut, meet the high bar for defamation of a public figure. The argument made by the campaign is that the clip takes one thing that Trump said — “this is their new hoax” — and takes it out of context. The context being that Trump was referring to the Democrats’ “politicization” of COVID-19, and the ad implies he’s saying that the disease itself is a hoax. The problem is that the difference here is not even remotely close to what it takes to be defamatory, even if it’s misleading. For one thing, Trump was playing down the threat and risk of COVID-19 in criticizing Democrats, who were warning that it was going to be a big deal. And that proved entirely accurate. The context here does little to actually make Trump look any better, and in no way rises to the level of it being defamatory.

On top of that, as I’ve pointed out repeatedly, the Trump campaign itself has regularly (for years!) posted much more misleadingly cut videos of his critics, including Joe Biden. So, even if the Priorities USA ad was defamatory, it would open up the Trump campaign to similar claims many times over. But it’s not defamatory.

It’s notable, of course, that Wisconsin, where this lawsuit was filed, has no anti-SLAPP law at all. And while the case is still likely to get thrown out at an early stage, the lack of an anti-SLAPP law means that (1) they’re much less likely to get back attorney’s fees, and (2) it’s still going to involve much more expensive legal work than if they could use an anti-SLAPP law.

Still, even though the case will get thrown out, Trump will “succeed.” Already I’m seeing clueless fans of Trump’s (the same ones who insist they’re all for the 1st Amendment) cheering on this example of Trump “hitting back against the fake news media” and it will almost certainly create chilling effects at other news stations that don’t want to take on the time and expense necessary to defend even this kind of bogus lawsuit. And that’s a huge shame, because a key aspect of the 1st Amendment is to protect political discourse — even when that discourse is misleading.

At the very least, this case should be a strong reminder that (1) Wisconsin needs an anti-SLAPP law and (2) so does the federal government.

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Comments on “Trump Campaign Actually Sues TV Station Over Anti-Trump Ad”

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That One Guy (profile) says:

'Now, on to the discovery phase and- hey, where you going?'

The problem is that the difference here is not even remotely close to what it takes to be defamatory, even if it’s misleading. For one thing, Trump was playing down the threat and risk of COVID-19 in criticizing Democrats, who were warning that it was going to be a big deal. And that proved entirely accurate.

That really is the kicker, and something that got buried in the last article on this debacle: No matter which ‘context’ you go with, the ad is still accurate. Trump was downplaying COVID-19 and the democrats were right in calling him out on that.

Trump wants to argue that the ad is not just ‘misleading’ but defamatory because what he really meant with that line was that the democrats were engaged in a ‘hoax’ when they claimed that he wasn’t taking it seriously? In their shoes I would be salivating to respond to that, with examples just lined up and ready to be submitted into the record.

Truth being a defense to defamation in the US I expect that unless Trump is aiming to win not on the merits(which his case utterly lacks) but simply by attrition as soon as it comes time to present actual evidence whatever lawyer(s) he’s got in charge of this PR stunt of a lawsuit will suddenly find that they’ve got something terribly important they need to get back to somewhere else.

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: 'Now, on to the discovery phase and- hey, where you going?'

I’ve said it before, but it’s worth repeating since Trump is allergic to the truth. The fact is, Trump was gambling American lives (again) for his own ego. By the time the virus hit Italy, it was clear what was needed and what should be done. Preparation for lockdown, ensuring hospitals and others had access to the correct supplies, procurement of tests when available, etc. South korea was providing the clear blueprint for others to follow. Even Spain have been criticised for being too slow to react and we did that weeks before Trump acknowledged the problem.

But, Trump has pinned much of his credibility on a strong economy. After the impeachment, he needed it more than ever for re-election. Taking any action whatsoever risked spooking the markets, and even if he saved lives he wouldn’t have the markets to fall back on for his ads.That’s why his was early to announce rescue packages for them – it was a gamble. If he could save the markets, but avoid an outbreak of the pandemic on American soil, he could use that as is reelection campaign.

But, his gamble failed. Horribly. People need to be reminded that people are currently dead because he wanted to save the Dow Jones, and his own skin by extension.

This comment has been deemed insightful by the community.
Rico R. (profile) says:

As someone from Wisconsin, it’s disheartening to see Trump take advantage of the fact we have no Anti-SLAPP law. I’d say, at the very least, we should push for such a law in Wisconsin. However, seeing as the GOP seemed more interested in pushing the state Supreme Court to convene over teleconference to force voters to go out to the polls in person WHILE the world is in a pandemic, I don’t foresee them acting on such legislation anytime soon…

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