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Trump Campaign's Ridiculous SLAPP Suit Against CNN Tossed Out Easily

from the as-expected dept

Back in March you may remember that we wrote about yet another ridiculous SLAPP suit filed by the Donald Trump campaign (using lawyer Charles Harder, who, you may also remember, was the lawyer in the lawsuit against us as well). Harder's track record in these performative cases continues to be... rather lacking. Last week, you may have missed that amidst all the other legal disputes Trump's campaign was losing, this particular case was also dismissed -- though, not quite as easily as I had expected. And it does leave it open for an amended complaint to be filed, though I still can't see how it passes muster.

If you don't recall, this particular lawsuit was about an opinion piece on CNN by Larry Noble, a former general counsel for the Federal Election Commission, who laid out a detailed analysis of the Mueller report about Russian interference in the 2016 election, and how it likely violated Federal Elections laws. The article expressed Noble's opinions, based on clearly disclosed facts. And that, by definition, should not be defamatory. District court judge Michael L. Brown -- who was appointed to the bench by Trump -- rejects the complaint, but not because it was opinion and therefore not defamatory.

The case focuses on a single statement in Noble's CNN article:

“The Trump campaign assessed the potential risks and benefits of again seeking Russia’s help in 2020 and has decided to leave that option on the table”

While many other statements in the article include language making it clear that these are Noble's opinion, that one sentence doesn't have that specific language, and that opens it up to being seen as a statement of fact, provable true or false.

A reasonable reader could readily understand the first part as alleging a weighing of the risks and benefits. It has a precise meaning. Defendants argue the second part is “couched in figurative, imprecise language, and thus is not actionable under New York [l]aw.” (Id. at 16.) The Court disagrees. While “[s]tatements ‘couched in loose, figurative or hyperbolic language in charged circumstances’ are more likely to be deemed opinions,” it is not an inflexible rule, and “the court should weigh the totality of the circumstances.”.... Thus, while “left on the table” is figurative language, it is also precise language. A reasonable reader could readily understand it to mean “available for consideration.” The Statement satisfies the first factor of the test.

However, what kills the lawsuit is the failure of Harder and the Trump Campaign to make much of an effort at all to get over the NYT v. Sullivan standard of defamation of a public figure. In order to meet that standard, they need to show that CNN/Noble knew that what was written was false, or had "reckless disregard" for the truth (which doesn't just mean they were sloppy -- it has to mean some actual action to avoid the truth). It seems that Harder barely even bothered to try to get over this "actual malice" bar, and the judge is not impressed:

Most of the allegations in the complaint regarding actual malice are conclusory. Plaintiff, for example, alleges in a purely conclusory manner that Defendants “clearly had a malicious motive” and “knowingly disregarded all . . . information when it published the Defamatory Article.”... The complaint’s allegation that Defendants were “aware at the time of publication” that the Statement was false due to “[e]xtensive public information” is also conclusory and without factual support.... Allegations such as these amount to little more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” which are insufficient to support a cause of action....

Plaintiff’s only other allegation of actual malice is that Mr. Noble had “a record of malice and bias against the President” as evidenced by a tweet and previous articles he had written.... In the tweet, Mr. Noble wrote: “Trump cheats and lies, and when caught, lies again and claims the right to make the rules. He claims defeats as victories, takes credit for anyone’s success and blames his failures on others . . . .” (Id.) The Supreme Court has emphasized “that the actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.”... The tweet might show Mr. Noble’s ill will towards the President, but it fails to plead actual malice in the constitutional sense—that is, it does not show Mr. Noble made the Statement with knowledge that it was false or with reckless disregard of whether it was false.

And thus the case is dismissed, though they can try to amend the complaint to plead actual malice. That seems quite unlikely to get anywhere.

In the meantime, this should be another reminder of why we need better state anti-SLAPP laws (that can apply in federal court) and a full federal anti-SLAPP law.

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Filed Under: actual malice, charles harder, defamation, donald trump, larry noble, russia, trump campaign
Companies: cnn


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  • icon
    That One Guy (profile), 16 Nov 2020 @ 12:57pm

    'I said it was true, what more evidence do you need?'

    Sounds like Harder decided to play using one of Trump's favorite tactics, namely 'No need to bother with evidence if you just confidently assert that you're right'. Unfortunately for him judges these days don't seem to be falling for that one, and the judge had the utter audacity to ask for actual evidence.

    Curse those (Trump appointed) activist commie judges!

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 16 Nov 2020 @ 1:23pm

      Re: 'I said it was true, what more evidence do you need?'

      Harder's not a lawyer you hire because you want to win your case. He's a lawyer you hire because you want to punish your critics with costly, time-consuming, and unpleasant litigation, and to intimidate anybody else who might consider criticizing you into thinking twice.

      Trump got his money's worth. (Assuming he's paying Harder; he's certainly been known to hire people and then stiff them. But Harder must be getting something out of it, even if it's only free publicity, or he wouldn't have stuck around this long.)

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 16 Nov 2020 @ 1:58pm

        Re: Re: 'I said it was true, what more evidence do you need?'

        That would certainly explain it, if you don't actually plan on winning a lawsuit(or even plan to lose) because it's nothing but a publicity stunt and you just want to throw out as many insults and accusations as possible they don't need to have any weight to them, since you just bail or 'lose' and whine about how those dastardly judges have it out for you and people need to give you more money to 'protect american freedom.'

        reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 16 Nov 2020 @ 2:23pm

          Re: Re: Re: 'I said it was true, what more evidence do you need?

          That's pretty much what a SLAPP suit is, yeah. I believe it was Ken White who compared it to the old line about "you can beat the rap, but you can't beat the ride." Same principle: powerful people can make your life miserable even if you haven't broken any laws.

          reply to this | link to this | view in chronology ]

      • icon
        Bloof (profile), 16 Nov 2020 @ 4:05pm

        Re: Re: 'I said it was true, what more evidence do you need?'

        The money's coming from his campaign rather than from Trump's own pocket so he'll get paid. Dumb as Trump is, he's not dumb enough to stiff the lawyer of choice for celebrity SLAPP actions.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 17 Nov 2020 @ 7:11am

          Re: Re: Re: 'I said it was true, what more evidence do you need?

          "...he's not dumb enough to stiff the lawyer of choice for celebrity SLAPP actions."

          Oh, he might. That said I wouldn't be surprised to see Harder take this pro bono - although it should perhaps be pronounced pro malis in his case - because taking on hopeless cases and demonstrating that he is good at dragging hapless victims for long rides benefits his profile.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Nov 2020 @ 2:07pm

    The World's Biggest Snowflake got his feels hurt again? Awww... Well, the most appropriate response in this case seems to be "Fuck your feelings".

    Here's a book of McDonalds gift certificates. Run along now and let the adults clean up your mess.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Nov 2020 @ 2:17pm

    In my opinion...

    Disclaimer: The following statement is my opinion and my opinion alone. It is not a statement of fact.

    I, being the person writing this statement of opinion, that being a statement not of fact, would like to say, as a matter of opinion, that it is the non-factual opinionated perspective of myself that this lawsuit is, in my opinion, but not factually, bullshit.

    The preceding statements have been my opinion only and not statements of fact. The preceding sentence declaring that the preceding statements were an opinion is factually true, that is, it's a fact that the preceding statement were an opinion, in my opinion.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Nov 2020 @ 7:07pm

      Re: In my opinion...

      And that reads about as clearly as actual legalese (meaning utterly confusing to anyone who doesn't know how to parse the language). Good, snarky post - you could write legal briefs like that.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Nov 2020 @ 4:04pm

    Liars R Us

    I fail to understand why someone does not create a company called "Liars R Us" and provide sworn statements by I Lie Freely, Chief Lying Officer that say "<Defendant> called me the day before they <tweeted/wrote/published> statement and told me they knew it wasn't true, but they were publishing it anyway for <reasons that meet the actual malice requirements> to anyone who wants them.

    My understanding is Judges are not allowed to evaluate the credibility of evidence at the SLAPP stage, so you should always be able to get by this stage. If it turns out the notary and CLO live in Nigeria and everyone else denies all knowledge of who they really are, this would work for a long time.

    Attorney says they got letter from client, so they are in the clear. Client says they received the statement by email from a concerned citizen they had never met before and you have a new Prenda Law business model.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 16 Nov 2020 @ 4:14pm

    One thing I can say...

    About Trump, he does keep trying Harder.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Tom Foo-Leary, 16 Nov 2020 @ 7:26pm

    It was a Strategic Lawsuit Against Pinko Propaganda!

    And for that purpose, may have succeeded.

    though, not quite as easily as I had expected. And it does leave it open for an amended complaint to be filed, though I still can't see how it passes muster.

    Given your track record, Maz -- especially with Trump Derangement Syndrome here -- I bet will continue after appeal.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Tom Foo-Leary, 16 Nov 2020 @ 7:27pm

      Re: It was a Strategic Lawsuit Against Pinko Propaganda!

      Looks like the limited number of pieces and comments since the election show that you're all holding breath to see if Trump WINS. -- NOT STEALS, WINS. -- You're getting a little braver, but given that at least two prominent attorneys have made strong statements that they've the evidence of election fraud -- not vote fraud -- then I think you should brace for disaster.

      In any case, the "Blue Wave" clearly flopped, and you're faced with more Populists than before.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Nov 2020 @ 8:36pm

        Re: Re: It was a Strategic Lawsuit Against Pinko Propaganda!

        LMAO

        reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 17 Nov 2020 @ 7:31am

        Re: Re: It was a Strategic Lawsuit Against Pinko Propaganda!

        "You're getting a little braver, but given that at least two prominent attorneys have made strong statements that they've the evidence of election fraud..."

        Two prominent attorneys who have both received multiple warnings for being shady in court...well, sure, Baghdad Bob, let them present said evidence, then. With any luck it might be better than what has been presented to "prove" voter fraud thus far - a number of flat-out lies and a sad little post-it note where an anonymous source stated he dun seen the democrats cheating.

        In the real world, where the rest of us live, it really isn't that hard. Present indication sure enough that malfeasance has been performed for a judge to allow a case and present your evidence.

        That the GOP can't do this - in fact, has had all their cases for this thrown out of court - only means one thing and one thing alone. There is no indication of voter fraud beyond the party of sore losers screaming that there is.

        And you guys can't even pull that off convincingly. Hell, the best of the best of your man-child-in-chief tried to lie about the nonattendance of republican observers in front of the judge facing incontrovertible evidence that republican observers were, in fact, present. After which Rudy Giuliani had to hold himself a press conference in some landscaper's loading dock and squeeze bullshit hand-waving and similarly wild accusations right in between a crematorium and a dildo store.

        I'm very much afraid that if you want to claim Biden has about five million less votes than he actually does you'll have to present at least some evidence of better standard than the crying whine of the child leaking all over the resolute desk.

        Oh...and while you're at it trying to come up with a reason as to why the bad bad dems stole the election, mind clearing this up for me? The same exact ballot which holds the name for president also holds the senate vote. Mind telling me why the liberal super-powered ninjas who magically converted names on ballots left that alone, given the senate is even worse a block than just Trump? Was it part of the "fiendish plan" to see Biden dedlocked by Mitch McConnell for the next four years?

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 17 Nov 2020 @ 7:58am

          Re: Re: Re: It was a Strategic Lawsuit Against Pinko Propaganda!

          "After which Rudy Giuliani had to hold himself a press conference in some landscaper's loading dock"

          Hey, that's not fair. It's quite possible that he could have had the Four Seasons hotel if he wanted to. It's not the fault of the hotel or the landscaper that he booked the place he did.

          "I'm very much afraid that if you want to claim Biden has about five million less votes than he actually does you'll have to present at least some evidence of better standard"

          Especially given that the stars have aligned in this case, where Biden has the same number of EC votes (with 5+ million more popular votes) as Trump did in his self-proclaimed "landslide" last election (with 3 million less popular votes).

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 18 Nov 2020 @ 6:40am

            Re: Re: Re: Re: It was a Strategic Lawsuit Against Pinko Propaga

            "It's quite possible that he could have had the Four Seasons hotel if he wanted to. It's not the fault of the hotel or the landscaper that he booked the place he did."

            Given how quick the Four Seasons hotel franchise were to disavow any knowledge or participation in that bit of classical greek tragicomedy I'm fairly sure Giuliani might have had some issues trying to book a Four Seasons hotel for his standup session next to the dildo store. I'm thinking the Four Seasons boardroom are all on their knees saying thanks it wasn't them right now.

            Just WHY Rudy decided on the venue he did is beyond me. I mean, Occam's razor supplies the answer that Trump's GOP is so bereft of competence even booking the right venue is too damn hard for them, but that answer prompts for some harsh choices to be made about lowering the mean average IQ of homo sapiens sapiens.

            "Especially given that the stars have aligned in this case, where Biden has the same number of EC votes (with 5+ million more popular votes) as Trump did in his self-proclaimed "landslide" last election (with 3 million less popular votes)."

            Those stars aligning isn't a good omen, poetic justice though it may be? It makes me wonder if R'Lyeh is rising from beneath the waves as we speak.

            reply to this | link to this | view in chronology ]

            • icon
              PaulT (profile), 18 Nov 2020 @ 7:16am

              Re: Re: Re: Re: Re: It was a Strategic Lawsuit Against Pinko Pro

              "Just WHY Rudy decided on the venue he did is beyond me"

              The way I see it, there's a few options:

              • His staff displayed the level of competence expected and just booked the wrong place.
              • His staff couldn't get the hotel, tried telling Rudy but he demanded that it's the Four Seasons and nowhere else, so they improvised
              • His staff tried the hotel but they were told they had to pay up front and couldn't get the funds (not out of the question - Trump's campaign was reported as being out of money before the election, and the reason why his rallies ended up stranding people in the middle of nowhere was that they weren't paying the bus companies)
              • His staff are as sick of this crap as the rest of us and decided to troll him since they're out of work either way when Trump gets kicked out, or they just haven't been paid either
              • Some external actor ran a scam to humiliate them

              None of these is a good look. A competent group would have recognised the optics of all of this and just held the announcement in a public park or other neutral venue if they couldn't get the prestige of the Four Seasons or a similar hotel. I can't think of a situation that would have led a competent or non-deliberately disruptive staff to pick this exact scenario.

              "Those stars aligning isn't a good omen, poetic justice though it may be?"

              It's a fun coincidence that just helps poke fun of the people who insisted that it was a landslide before but a close loss this time, and helps highlight which states are vital to concentrate on between now and 2024. There's no point reading anything else into it.

              "It makes me wonder if R'Lyeh is rising from beneath the waves as we speak."

              After remaining dormant through two world wars, the brink of nuclear destruction and a much more deadly plague last century, I somehow doubt that the trigger for the Elder Gods awakening is an election result in a country that didn't exist last time they roamed. Unless, they really wanted a Trump victory and they want to ensure the destruction that was meant to bring, anyway. I think we just have to deal with a return to normality, where a much more boring set of events may or may not lead to more mundane issues.

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Nov 2020 @ 8:06am

        Re: Re: It was a Strategic Lawsuit Against Pinko Propaganda!

        Marked as funny.

        Cry harder, snowflake (pun intended).

        And while you're at it, fuck your feelings.

        reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Tom Foo-Leary, 16 Nov 2020 @ 7:29pm

      Re: It was a Strategic Lawsuit Against Pinko Propaganda!

      Yet again, didn't go in first three or four attempts, so cut the now second comment, and all the same text is in. -- WHAT THE HELL GOOD ARE YOUR FILTERS or whatever wacky system you use? The SAME text, just split.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 16 Nov 2020 @ 11:37pm

        Re: Re: It was a Strategic Lawsuit Against Pinko Propaganda!

        The funniest thing about your moronic whining about being filtered is when we can see all the comments you claim are blocked.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Nov 2020 @ 8:09am

        Re: Re: It was a Strategic Lawsuit Against Pinko Propaganda!

        All you conservatives do is fucking whine!

        About. fucking. everything.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 18 Nov 2020 @ 6:45am

          Re: Re: Re: It was a Strategic Lawsuit Against Pinko Propaganda!

          Not exactly true. A modern US conservative could sit in acid up to his neck with a blender shoved up his arse and as long as he could watch a liberal stub his toe he'd still be happy about it.

          They only whine when liberals aren't getting fucked somehow. If some black guy is murdered for Being Brown in public and liberals are outraged about it...that's their super-fuel. As long as they get to watch someone spill tears over someone getting hurt they don't care if you physically set them on fire.

          And I wish, so badly, that I could put an /s in there somehow, but no. That's how they roll.

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 18 Nov 2020 @ 7:17am

            Re: Re: Re: Re: It was a Strategic Lawsuit Against Pinko Propaga

            Indeed. The biggest problem we face going forward is that there's apparently 72+ million people who will opt to die horrific deaths so long as a liberal is upset about the collateral damage.

            reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 16 Nov 2020 @ 9:41pm

      Re: It was a Strategic Lawsuit Against Pinko Propaganda!

      Yeah, right.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous, 17 Nov 2020 @ 12:15am

    Better reporting from Masnick

    Thanks for actually writing a decent report that wasn't BIASED. Your way of reporting is far better than the previous articles involving Trump lawsuits.

    I will add that Russiagate was fake, started by FusionGPS(paid for by the Clinton campaign). CNN along with other networks MSNBC,etc, ran with it for a long time since it got them ratings as a way to bash Trump(that's no secret). Which got the Muller report and if you watched the investigation hearings from start to finish, you'll learn Russiagate wasn't true, at all.

    Sources: https://www.youtube.com/watch?v=WOQXOV0PHL4&t=320s

    https://www.youtube.com/watch?v=WRoTGlQ4JMA&a mp;t=29s

    https://www.youtube.com/watch?v=LfSvNRLTKC4&t=89s

    https://www.youtube.com/watch?v=WRoTG lQ4JMA&t=460s

    Unfortunately, It is very hard(virtually impossible) to prove that anyone that says anything derogatory in such a way when tying your name to fake propaganda such as Russiagate, that CNN( or any network) intended to do harm, and "knew" the information was false.

    What took place wasn't journalism, it was BIASED opinions that CNN didn't need evidence for because it was just an intended smear piece. Proving it was a smear piece is a fruitless venture for the Trump administration.

    Good article to read though. I just wanted to add that bit.

    reply to this | link to this | view in chronology ]


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