While we’ve been discussing a bunch of other Supreme Court end-of-term decisions this week, we should also call out two decisions the Supreme Court thankfully decided not to make. These non-decisions continue to help preserve First Amendment speech protections.
First, and most importantly, they rejected Alan Dershowitz’s attempt to appeal his laughably embarrassing SLAPP suit against CNN, which was filed in the hopes of getting it before this Supreme Court as part of the ongoing and extremely dangerous project by the rich and powerful to dismantle the “actual malice” standard found in NYT v. Sullivan. If you want to learn more about that dangerous project, listen to the podcast I recorded with reporter David Enrich, whose book, Murder the Truth, goes deep on this issue.
Dersh seemed to really hope that his case would be the one to overturn Sullivan, but it’s not to be. The Supreme Court denied cert. Of course, with that denial, Justice Clarence Thomas decides to pen another whiny blog about how much he hates the “actual malice” standard. He cites his own previous whining as well as his mentor’s, former Judge Laurence Silberman, who picked up the same cause soon after Thomas starting yelling about it.
The “actual malice” standard for public figures “bears ‘no relation to the text, history, or structure of the Constitution.’” Berisha v. Lawson, 594 U. S. ___, ___ (2021) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 2) (quoting Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251 (CADC 2021) (Silberman, J., dissenting)….
Instead, Thomas believes that public figures deserve extra special protection from critics, again citing his own previous whining:
Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed. See McKee v. Cosby, 586 U. S. 1172, 1177 (2019) (THOMAS, J., concurring in denial of certiorari). I and others have thus called for reconsideration of the actual-malice standard for public figures.
Thankfully, seven other Justices have no interest in this. However, Thomas did get Gorsuch to sign on to this, which perhaps isn’t surprising, as he’s joined Thomas’s anti-actual malice crusade in the past. However, in Enrich’s book, he uncovers that Gorsuch’s hatred for “actual malice” was based on a study… that was wrong. Apparently Gorsuch hasn’t adjusted his position, even though the data he has relied on has been proven to be incorrect. Not great, but at least this misinterpretation hasn’t infected others on the court yet.
The actual malice standard is what makes First Amendment speech protections function in practice — it’s the mechanism that keeps powerful people from drowning critics in expensive litigation. I get that Clarence Thomas hates the fact that people criticize him and his rich and powerful friends, but that’s a reason for him to go retire somewhere, not to rewrite one of the core planks that makes the First Amendment work.
The other denial is a bit less eventful. The Court refused to hear an appeal from Donald Trump on his $5 million loss (by jury verdict) in one of the defamation suits filed by E. Jean Carroll against him:
In November, Trump came to the Supreme Court, asking the justices to hear his appeal. He contended that Carroll’s lawyers should not have been allowed to introduce testimony by other women who also alleged that Trump had assaulted them, as well as the 2005 “Access Hollywood” tape in which Trump bragged about grabbing women by their genitals.
In her brief responding to Trump’s petition, Carroll argued that even if the jury should not have been allowed to consider the evidence, it ultimately would not have made a difference because the rest of her case was so strong. She asked the justices to deny review.
On Monday, the justices did so, without a noted dissent from the denial.
Of course, this is just one of two separate cases that Trump lost to Carroll on, and he’s also appealing the other one — the $83 million verdict — and that’s still pending. However, for now Trump appears shocked that his buddies on the Supreme Court didn’t get him out of this particular pickle. Once again, nothing short of total, unconditional loyalty will ever satisfy Trump.
In the meantime, though, we have the Court passing on these two cases, both of which might have messed with the basic standards regarding defamation. Passing on both means that, for now, the Supreme Court hasn’t taken a sledgehammer to First Amendment protections.
There are defamation lawsuits designed to win, and then there are defamation lawsuits designed to generate headlines for your fans on social media, punish journalists, and maybe — if you’re lucky — force a settlement or intimidate future reporting. FBI Director Kash Patel’s brand new defamation lawsuit against The Atlantic is very obviously the second kind.
On Friday, The Atlantic published a truly devastating profile of Patel, reporting that “more than two dozen” current and former officials described a director who shows up to Ned’s in DC and the Poodle Room in Las Vegas to drink until he is visibly drunk, and who has been difficult to wake on occasions when his security detail needed him. There’s also this fun anecdote in the opening, talking about a time, earlier this month, when Patel had trouble logging into his computer:
He quickly became convinced that he had been locked out, and he panicked, frantically calling aides and allies to announce that he had been fired by the White House, according to nine people familiar with his outreach. Two of these people described his behavior as a “freak-out.”
That’s just kinda amusing, but there are a lot more serious concerns, such as the fact that the nation’s top cop is (according to the article): “often away or unreachable, delaying time-sensitive decisions needed to advance investigations.”
The article included a response from Patel, attributed to him by the FBI: “Print it, all false, I’ll see you in court — bring your checkbook.”
On Monday, represented by MAGA-world’s go-to lawyer Jesse Binnall, Patel did exactly that, filing a 19-page complaint in federal court in DC seeking $250 million in damages.
The complaint is, to put it charitably, not great. To put it less charitably, it reads like a press release with a case caption stapled to the top.
Let’s start with the central legal problem, because it’s kinda fatal. Patel is indisputably a public official — he runs the FBI — which means under New York Times v. Sullivan, he has to plead and eventually prove that The Atlantic published with “actual malice,” meaning with knowledge that the statements were false, or with reckless disregard for their truth or falsity — a legal term of art that requires showing the publisher actually suspected the statements were false and deliberately avoided finding out, not merely that they moved quickly or relied on anonymous sources. This is a very high bar. It’s been a high bar since 1964. Every lawyer who files a defamation case for a public figure is supposed to know that this is the hill they have to climb.
Here is how the complaint attempts to plead actual malice:
Defendants’ conscious decision to ignore the detailed, specific, and substantive refutations in the Pre-Publication Letter, and their refusal to give a reasonable amount of time for the FBI and Director Patel to respond, is among the strongest possible evidence of actual malice.
In other words: Patel denied it, The Atlantic published anyway, therefore actual malice. There is no real attempt to plead actual malice beyond that.
That’s not actual malice. That’s just how journalism works. Every news story that anyone has ever complained about in history has been published after the subject denied it. If “the subject denied it and you published anyway” were sufficient to establish actual malice, the First Amendment would be a dead letter and every investigative story ever written would generate a winning lawsuit.
Yes, those filing SLAPP lawsuits often claim that their subjects’ denials constitute actual malice — but that’s not how it works in court, and it never has been.
And we know this argument doesn’t work because we just watched a judge throw out Donald Trump’s $10 billion defamation suit against the Wall Street Journal for making essentially this exact argument. That was all of a week ago. A public figure’s denial, followed by publication, is not actual malice. A court said that a week ago. This is well-known, settled law. Binnall surely knows this. Patel’s filing this suit anyway.
The complaint does gesture weakly at some other theories — that the anonymous sources were “partisans with axes to grind,” that The Atlantic imposed a two-hour comment deadline, that there was “editorial animus” evidenced by prior Atlantic coverage. But even stacked together, these don’t get you to actual malice. Relying on anonymous sources isn’t reckless disregard—it’s how journalism works. Short deadlines for comment aren’t evidence of malice either; they’re standard operating procedure for breaking news. Prior negative coverage doesn’t even come close to the legal standard, since public figures doing controversial things tend to get criticized.
There’s also the fact that the complaint tries to twist statements by anonymous sources which the Atlantic reported on as The Atlantic’s own speech. Almost every one of the 19 allegedly defamatory statements enumerated in paragraph 18 is, on the face of the article, attributed to anonymous sources. For example, count 18(e) claims that a request for ‘breaching equipment’ — “normally used by SWAT and hostage-rescue teams to quickly gain entry into buildings” — was made because Patel was unreachable. The complaint states:
Fitzpatrick knows that her anonymous sources, unwilling to go on the record, are partisans with axes to grind and are not in a position to know the facts.
Almost all of the claims are like this. “According to multiple people familiar with the request.” “According to information supplied to Justice Department and White House officials.” “According to the more than two dozen people I interviewed.”
The Atlantic’s defense (if it even gets that far) is therefore not going to need to be “we can prove Kash Patel was drunk at Ned’s.” It’s going to be “multiple credible sources told us this, we reported what they said along with corroborating evidence, and we have our notes, emails, and recordings to prove that’s what they told us.” That’s a fundamentally different — and far easier — thing to defend. Publishers aren’t required to prove the absolute truth of everything their sources say. They’re required to not publish with reckless disregard for the truth, which requires evidence about what the publisher knew or suspected, not what turned out to be the ultimate truth of the matter.
The Atlantic had multiple sources for each of its claims. It has corroborating evidence to support the claims. That is not a situation that says actual malice. It’s a situation that says “we did careful reporting.”
The complaint doesn’t grapple with this distinction at all. It just keeps repeating that the FBI told The Atlantic the claims were false before publication, as if that’s the end of the story. It isn’t. Subjects of investigative reporting deny things all the time. Publishers weigh denials against their sources and decide whether to publish based on all of the evidence they’ve collected. The First Amendment protects that decision-making process precisely so that powerful officials can’t just deny critical stories into non-existence.
In theory, there’s also the issue of discovery. Whenever cases like this get filed, people on social media say things like “can’t wait for discovery.” But cases like this rarely even get to the discovery stage. The Atlantic will almost certainly file for a motion to dismiss, which almost always happens pre-discovery, and a failure to competently plead actual malice is a good reason for the case to be tossed at that stage, without any discovery.
But also, given that Patel was famously seen on video chugging a beer at the Olympics in the Men’s Hockey locker room, it seems like Patel himself might not be all that interested in discovery either.
Of course, the goal was never to win. The goal was to file. And, sure some people will point to Trump’s settlements with news orgs, but those were to the president himself, and quite clearly designed to curry favor. As powerful as the FBI director is, it’s doubtful that the Atlantic is looking to curry favor with the FBI director via a settlement.
And that brings us to the other tell: the Streisand Effect. The complaint itself complains how much attention the article — again talking about how various officials in the FBI were concerned about situations where the FBI director appeared to be blackout drunk — got some attention on the internet.
The Article was widely disseminated on the internet, through AMG’s magazine and associated platforms, and was foreseeably republished, summarized, and discussed throughout national and international media.
Ya think?
Patel’s response to this alleged injury was to file a $250 million lawsuit — an action guaranteed to drive far more traffic to the very article he says is destroying his reputation. Every news outlet that covers the lawsuit links to or summarizes the original piece. Every social media post about the suit reintroduces the allegations to people who had never seen them. If your complaint is that too many people read the story, filing a splashy nine-figure lawsuit is a strange way to handle it.
None of this is an accident or a rookie mistake. This is how Binnall — and his predecessor in this particular niche, Steven Biss — have always done it.
Long-time Techdirt readers may recall that we first covered Kash Patel filing a SLAPP suit all the way back in 2019, when he was a White House staffer and former Devin Nunes aide. He used Steven Biss — Nunes’s own go-to lawyer for suing critics, satirical Twitter cows, and journalists — to sue Politico over accurate reporting about Fiona Hill’s congressional testimony. That complaint, like this one, read more like a press release than a pleading, opening with a tirade about “weaponized media” and “partisan hacks and character assassins who work to advance the interests and agendas of dark money.”
Biss specialized in filing SLAPP suits for MAGA figures. Most of them lost. He filed so many of them that when he had a stroke in 2023, his law license was eventually suspended on impairment grounds, and a bunch of his cases had to be handed off to someone else. That someone else was mostly Jesse Binnall, who promptly continued the losing streak. The Flynn family’s SLAPP suit against CNN? Tossed. Patel’s own 2024 threat letter to MSNBC commentator Olivia Troye? Answered with a Monty Python reference.
Filing is the point. Winning is beside it. These suits generate favorable headlines in friendly media, signal aggression to critics, raise the cost of covering the subject, and — if everything goes perfectly — get a defendant to settle just to make the expense go away. Whether they actually prevail on the merits is beside the point for the filer. Binnall has built a practice around this model. Patel has used that practice repeatedly across multiple roles over the last few years.
This is a textbook SLAPP, and it’s a good reminder of why we need anti-SLAPP laws to begin with.
Which brings us to a frustrating final wrinkle: the case was filed in federal court in DC, and while DC has an anti-SLAPP statute, the DC Circuit ruled a decade ago that it doesn’t apply in federal court. On top of that, the DC Court of Appeals more recently invalidated part of the law’s fee-shifting provisions. So even though DC ostensibly has protections against exactly this kind of lawsuit, The Atlantic basically can’t use them here. This is a pattern repeated across the country — patchwork state laws, some strong, some weak, many with large loopholes, and many federal circuits have barred their use in federal courts.
This is why we need a federal anti-SLAPP law, and why we need strong anti-SLAPP laws in every state and territory. The people who file these lawsuits know exactly which jurisdictions lack them, and they file accordingly. The asymmetry — where the cost of filing a meritless suit is minimal for the plaintiff, while the cost of defending it is substantial for the defendant — is exactly what makes the SLAPP tactic work. Anti-SLAPP laws with robust fee-shifting flip that equation, making bad-faith plaintiffs think twice.
Absent that, we’re left with the situation we have now: the head of the nation’s federal law enforcement agency uses a $250 million defamation suit as a political messaging tool, filed by a lawyer whose track record of losing these cases is long and detailed. The Atlantic will likely win on a motion to dismiss. Patel will get his headlines. And a lot more people will have read about Kash Patel’s alleged drinking habits than ever would have otherwise.
For the supposed “free speech party,” filing vexatious SLAPP suits against investigative reporters has become a rite of passage — a way of making clear there’s a price for making the people in power look bad.
Back in January of last year, the Wall Street Journal published a story about a leather-bound birthday book that Ghislaine Maxwell had assembled for Jeffrey Epstein’s 50th birthday in 2003. The book included letters from various associates, and one of them bore Donald Trump’s name. According to the article, it featured a hand-drawn outline of a naked woman with typewritten text inside. The page was signed with a recognizable squiggly “Donald” signature positioned to mimic pubic hair and closed with the ridiculously creepy line: “Happy Birthday—and may every day be another wonderful secret.”
Trump denied writing the letter and called it “a fake thing” before suing the Journal, Rupert Murdoch, News Corp, and the two reporters for a mere $10 billion. Each count asked for at least $10 billion, because apparently that’s the going rate for Donald Trump’s hurt feelings these days.
On Monday, federal judge Darrin Gayles dismissed the lawsuit, finding that Trump hadn’t come anywhere close to adequately alleging “actual malice,” the standard required for a public figure to win a defamation claim. For those who follow this stuff, that’s about as unsurprising as it gets.
The actual malice standard, established in New York Times v. Sullivan decision, requires a public figure to show that the defendant either knew the story was false or published it with reckless disregard for the truth (which courts have interpreted to require that the publisher actually harbored serious doubts about whether the statement was true). It does not mean, as many people assume, the colloquial meaning of “malice”: that they just don’t like the person. Trump’s complaint was heavy on boilerplate language about malice and light on, well, anything resembling actual facts supporting it. Judge Gayles was blunt about the gap:
The Complaint comes nowhere close to this standard. Quite the opposite.
The “quite the opposite” is the fun part. Trump’s own complaint described the reporters reaching out to him, as well as the FBI and the Justice Department, before publication. Trump gave them a denial, which they printed; the DOJ didn’t respond and the FBI declined to comment. Trump’s argument was essentially that since he told the Journal the letter was fake before publication, running the story anyway proved they had serious doubts about its truth and therefore acted with actual malice.
You hear this a lot from SLAPP defamation filers, pretending that a mere denial by them means that anyone printing what they’re accused of is actual malice. But that’s not how any of this works. Just because you deny something, doesn’t automatically mean the journalists have to believe it’s false. Their evidence can (and often does) reveal that the subjects of their reporting are lying in their denials. A denial is not proof of falsity. It’s just proof that you’re denying something. The court wasn’t buying any of it:
To establish actual malice, “a plaintiff must show the defendant deliberately avoided investigating the veracity of the statement in order to evade learning the truth.”…
As the judge noted, printing Trump’s denial alongside their own journalistic findings demonstrated responsible reporting — the opposite of actual malice, which would require evidence that the reporters had serious doubts about the letter’s authenticity and deliberately avoided investigating further. Then printing the denial alongside the evidence, again, was the opposite of actual malice:
The Article also informed readers that President Trump decried the Letter as a fake and denied writing it. By “allowing readers to decide for themselves what to conclude from the [Article], any allegation of actual malice [is] less plausible.” Turner, 879 F.3d at 1274. See also Michel, 816 F.3d at 703 (holding that “reporting perspectives contrary to the publisher’s own should be interpreted as helping to rebut, not establish, the presence of actual malice.”)
The judge also, somewhat gently, reminded Trump’s lawyers that actual malice is an actual legal standard, not just ‘they don’t like me.’
President Trump’s allegation that Defendants acted with ill-will is insufficient to plead actual malice. Aside from being conclusory and without factual support, “ill-will, improper motive or personal animosity plays no role in determining whether a defendant acted with actual malice.”
Meanwhile, as this lawsuit wound through the courts, the very letter Trump claimed didn’t exist surfaced publicly. The House Oversight Committee subpoenaed the Epstein estate and obtained the birthday book. They released it publicly, and wouldn’t you know it, there’s a page that matches the Journal’s description of the letter exactly:
The judge couldn’t consider the produced letter at this stage of the litigation because Trump disputes its authenticity, which is his right procedurally. And the judge has to treat the claims in the complaint as true. But the rest of us sure can look at it. And judge for ourselves.
The court gave Trump until April 27 to file an amended complaint, and a spokesman for his legal team promised he would “refile this powerhouse lawsuit.” I suppose if you squint hard enough at a complaint a federal judge said “comes nowhere close” to meeting basic legal standards, “powerhouse” is one word you could use for it — just probably not in the way they mean.
The Journal’s defense team also sought attorneys’ fees under Florida’s anti-SLAPP statute. The judge denied the fee request for now, since Trump gets a chance to amend. But that request can be renewed, which means if the amended complaint fares no better, Trump could end up paying for the privilege of having sued the Journal over a story that appears to be true.
This is also a reminder of why we need stronger anti-SLAPP laws in every state, as well as a federal anti-SLAPP law.
This case isn’t over yet, but the judge clearly sees it as just as weak as we said it was when it was filed last year. As always, Trump files these vexatious lawsuits knowing none of them have a real shot — the goal is to burn time and money for media organizations, and scare some of them into softening their coverage or thinking twice before calling out his behavior.
The guy who presents himself as a champion of free speech remains the most anti-free speech president we’ve had in any of our lifetimes, consistently abusing the judicial system as a way to punish those who make him look bad.
President Trump, who keeps pretending he’s for free speech, but who has filed more defamation lawsuits against more media organizations than any president in history (combined), has done so again. This time, he has sued the British Broadcasting Corporation (BBC) in Florida (naturally). For context: the only other president to come anywhere close was Teddy Roosevelt, who sued a Michigan newspaper for calling him a drunk—and that was while campaigning as an ex-president, not while actually holding office.
At issue was a BBC Panorama documentary about January 6th, in which there is (at worst) a slightly awkward edit: two separate sentences of Trump’s speech were shown one after another, despite being separated by over half an hour of Trumpian ramblings. The original claim was that this edit somehow changed the meaning of what Trump said, though in the past few days, Trump has been falsely claiming that the documentary used AI to make him say things he didn’t say.
The lawsuit makes zero mention of AI. Instead, it claims that they edited the two sentences together in a way that was misleading.
The lawsuit isn’t a surprise. He’s been talking about this for a few weeks now, even though (1) the BBC did nothing wrong, (2) the BBC still apologized, (3) the BBC effectively fired those who did the controversial edit, (4) the BBC has promised never to show the documentary again, and (5) the BBC has since bent over backwards to portray Trump positively.
The suit “does not have any legal basis, either on defamation or jurisdictional grounds,” said Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression.
“This is nothing more than the president’s latest effort to intimidate media companies that he sees as adversarial to his administration,” he said.
As he notes, the first hurdle is going to be the jurisdiction. Suing in Florida is a choice, given that the BBC only showed the documentary in the UK, not anywhere in the US, let alone Florida. Showing that the documentary somehow harmed Trump’s reputation in Florida will be virtually impossible if it actually got to that point (which it won’t).
The complaint tries to get around this by—I shit you not—claiming that because VPN usage is up in Florida, it likely means people are using VPNs in Florida to appear to be in the UK in order to watch BBC streams that are geo-locked to the UK. No, really:
According to vpnMentor, a VPN research firm, VPN usage in Florida has skyrocketed since 2024, with a 51% increase in demand on December 19, 2024, and an over 1,000% increase in VPN usage at the beginning of 2025.
Florida streamers have opted to use VPNs to increase their “streaming freedom.” Among the most popular streaming services accessed by viewers using a VPN is BBC’s online streaming platform, BBC iPlayer.
To that end, an article published by Tom’s Guide, a reputable technology news outlet, revealed that a VPN usage survey showed that approximately 41% of VPN subscribers use the service to stream content, citing BBC iPlayer as an example of what a VPN subscriber could view using a VPN.
The Panorama Documentary’s publicity, coupled with significant increases in VPN usage in Florida since its debut, establishes the immense likelihood that citizens of Florida accessed the Documentary before the BBC had it removed.
That is the kind of argument that should get a lawyer sanctioned.
Then there’s the actual malice part of this. It’s unlikely that Trump can show actual malice here, since (as a public figure) that would require showing that the BBC knew this was “false” or that they ignored evidence of the falsity of the statement. But that’s a problem since it wasn’t false. Florida is a state that recognizes a version of “defamation by implication,” in which true statements presented in a way that implies a defamatory fact can still be defamation, but it’s difficult to see how this edit rises to the necessary level, which would require the BBC to have deliberately decided to misrepresent the facts in this way.
The supposed smoking gun in the lawsuit is an internal memo that was made public recently, in which some employees raised concerns about the edit, which the lawsuit uses in its weak attempt to manufacture actual malice.
As set forth in a damning and recently leaked BBC internal whistleblower document, the BBC intentionally used the Panorama Documentary to maliciously, falsely, and defamatorily make it appear that President Trump explicitly called for violent action and rioting, and that he “said something he did not,” by splicing together footage from the start of the Speech with a separate quote that he said nearly 55 minutes later, while omitting his statement calling for peace, made less than one minute after his first statement urging supports to cheer their senators and congressmen at the Capitol. Such distortion of the President’s speech by the BBC “materially misled viewers.”
Here’s the problem with that theory: Internal editorial debate about whether an edit works is not evidence of actual malice under its legal definition. It’s evidence of editorial standards. If anything, it shows the BBC was wrestling with how to responsibly present the material—the opposite of reckless disregard for the truth. Trump’s lawyers are trying to weaponize normal journalistic process as proof of bad faith, which is both legally nonsensical and a chilling attack on newsroom deliberation.
There’s a separate issue in Florida, as well, which is that Florida defamation law gives news orgs the ability to limit the damages to “actual damages” by issuing a correction, an apology, or a retraction. And the BBC has, in fact, issued an apology (unnecessarily). This alone should cap any potential damages at actual harm suffered, which would be… what exactly? Trump won the election. His reputation, to the extent it can be harmed by accurately showing his own words about January 6th, certainly wasn’t damaged enough to cost him anything measurable. The man is president.
Oh, I guess we should mention, just for the sake of laughing at it, Trump is actually demanding a very Dr. Evil like “$10 billion” for an edit of a single TV program not shown in the US and which did no actual damage to his reputation.
Still, like nearly all of Donald Trump’s SLAPP suits, the point is not to win the lawsuit. Rather it’s to continue the same streak of intimidation tactics that he’s done for years. He sues media properties on no basis whatsoever, knowing that it causes not just the media targets of his lawsuits to be a lot less willing to report on the president’s words and actions in the future, but also scares others into silence as well.
Donald Trump is a serial filer of SLAPP suits, which serve no purpose other than to intimidate the media away from reporting negatively on him. It is just one of many reasons that he is the most censorial president ever. Hopefully the courts drop kick this case off the docket in record time.
Last year, we wrote about Donald Trump’s bullshit lawsuit against Iowa pollster Ann Selzer for releasing surprising polls right before the 2024 election suggesting that Kamala Harris might actually beat Donald Trump in Iowa. The polls turned out to be wrong—as polls sometimes are—and Trump decided this was grounds for a lawsuit. That case continues with a bunch of nonsense legal gamesmanship.
But Trump’s lawsuit wasn’t the only one. A separate “class action” lawsuit was filed against Selzer and the Des Moines Register by Dennis Donnelly, a random Des Moines Register subscriber who claimed the poll constituted “fraud,” “professional malpractice,” and—even more ridiculously—”interference with the right to vote.” It was basically a copycat lawsuit of Trump’s to try to put more pressure on Selzer and the Des Moines Register.
Polls, like nearly all speech, are protected by the First Amendment. To get past that rather large hurdle, a plaintiff would need to show the poll was somehow both false and made with “actual malice”—not that it was mean-spirited, but that Selzer basically knew it was “false” when she published it.
That’s a problem when the “expression” in question is a poll based on data Selzer actually collected. It’s an opinion derived from methodology, not a factual claim that can be “false.”
Finding actual malice requires Donnelly to plausibly allege Defendants sacrificed decades of work in cultivating this reputation for accuracy by “knowingly or recklessly” manufacturing a poll they knew was incorrect in pursuit of an unclear goal. See ECF No. 36 at 33. With no factual allegations to support such an assertion and mere conclusory statements, Donnelly asserts only a bare legal conclusion accompanied by actual malice buzzwords that Defendants acted knowingly or recklessly. This is insufficient to meet the plausibility standard….
The court’s response to the “fraudulent misrepresentation” claim is even more brutal:
No false representation was made. Defendants conducted a poll using a particular methodology which yielded results that later turned out to be different from the event the poll sought to measure. The results of an opinion poll are not an actionable false representation merely because the anticipated results differ from what eventually occurred…. Donnelly, and all other readers, knew how the poll was conducted because the poll results were accompanied by a thorough discussion of methodology…. Donnelly does not claim the disclosed methodology was not followed, that results were falsified, or that Defendants altered the poll in some other way which did not reflect the publicly disclosed methodology. Defendants told readers exactly what they did and how they did it. Therefore, no false representation was made.
The court then highlights the absurdity of Donnelly’s position by applying his own logic to the polls he cited favorably:
Donnelly cites to several other polls which had then-candidate Trump ahead by between seven and nine points…. The actual margin of the election was thirteen points…. Donnelly cites these other polls favorably, yet, by his definition of misrepresentation, every single one of these polls cited also “was all wrong.” … These polls were not fraudulently misrepresenting the state of the race, they merely used different methodologies in an attempt to best capture a snapshot of a dynamic race. … Donnelly fails to cite to any authority finding an opinion poll of a future event constitutes a false factual assertion.
The “professional malpractice” claim fares no better. The court compares it to suing a weather forecaster for an incorrect prediction and walks through the parade of absurdities that would follow:
Donnelly’s claim also fails because political opinion polls are predictive and inherently uncertain. Defendants here carried out a randomized survey and published the results along with a full explanation of the poll methodology. Donnelly’s novel attempt to impose liability for news prediction is similar to Brandt v. Weather Channel, Inc. in which a plaintiff sought to hold a news channel liable for an inaccurate weather forecast…. That court noted “to impose such a duty would be to chill the well established first amendment rights of the broadcasters.” Id. at 1346. The court in Brandt further observed the litany of absurd suits which could follow from imposing such a duty, such as construction workers suing when they pour concrete in reliance on a weather report forecasting no rain or commuters suing when they are stuck in traffic and late to work because the news reported there would be light traffic. Id. Finding for Donnelly here would permit similar absurdity. The Court declines to permit such absurdity and finds Defendants owed no such duty to Donnelly.
This ruling doesn’t just dismiss Donnelly’s lawsuit—it preemptively demolishes every argument Trump is using in his own case. As Jacob Sullum at Reason points out, Trump’s lawsuit is even weaker than Donnelly’s already pathetically weak case:
If anything, Trump’s fraud claims are even less plausible than Donnelly’s. Donnelly, who sued on behalf of all Des Moines Register subscribers, actually has a commercial relationship with the newspaper. Trump, by contrast, does not seem to have any such connection with the Register or Selzer. But both lawsuits suffer from the same basic problem: Because they treat misleading journalism as actionable fraud, they amount to thinly veiled assaults on freedom of the press.
Of course, these lawsuits were never really about having plausible claims. These lawsuits exist to send a message: publish anything that favors a political opponent of Donald Trump, and he and his MAGA allies will bury you in litigation. It doesn’t matter if the cases are frivolous. The process is the punishment, and the threat of more lawsuits is the deterrent. That’s not a legal strategy—it’s a censorship campaign dressed up in legal paperwork.
Even by Donald Trump’s standards for frivolous defamation lawsuits, this one is impressively stupid. On Monday, the president filed yet another lawsuit against the NY Times—this time seeking $15 billion over a book that claims he’s not quite as successful a businessman as he pretends to be.
The timing is almost comically bad. Trump is suing over allegations that he’s not actually that successful… right after winning the presidency in a landslide and making absolute bank while doing it. Has there ever been a sorer winner in the history of politics? You’re the fucking President. Get over the fact that some people criticize you already.
Trump has a decently long history of suing media outlets over unflattering coverage, including multiple failed attempts against the Times. Just last year, he had to pay nearly $400k in legal fees after another bogus lawsuit against the Times failed. But why let past failures slow you down when you can file an even dumber one?
The lawsuit is against the NY Times and book publisher Penguin Random House, along with some reporters at the NY Times. The complaint is… well… it is not the most organized or professional of complaints. It is, as so many Donald Trump lawsuits seem to be, political documents designed to please Donald Trump and his legally ignorant MAGA base, rather than convincing judges.
The complaint reads more like a press release than a legal document, packed with ego-stroking passages that reveal just how pathetically thin-skinned Trump remains. Consider this actual paragraph from a federal lawsuit:
Thanks solely to President Trump’s sui generis charisma and unique business acumen, “The Apprentice” generated hundreds of millions of dollars in revenue, and remained on television for over thirteen years, with nearly 200 episodes. “The Apprentice” represented the cultural magnitude of President Trump’s singular brilliance, which captured the zeitgeist of our time.
And, yes, that picture is included.
The complaint starts out by claiming that the NY Times endorsing Kamala Harris was a form of “election interference” which is not how anything works.
President Trump trounced Harris with 312 electoral votes and a sweep of all seven “battleground” states. This victory was remarkable for many historic reasons, including because President Trump had to overcome persistent election interference from the legacy media, led most notoriously by the New York Times.
That’s literally in the first paragraph of the complaint (though the claims themselves do not revolve around election interference, but even weaker claims of defamation). But, admitting that you won the election already undermines the idea that there was any damage done to Trump’s reputation from [checks notes] political reporting on him (historically some of the most protected of speech under the First Amendment.)
Indeed, Trump is going to have a pretty difficult time showing “damage” done to his reputation here. He claims that the NY Times tried to do three things:
Defendants’ pre-election goal was to kill three birds with one stone: (a) damage President Trump’s hard-earned and world-renowned reputation for business success, (b) in the process, sabotage his 2024 candidacy for President of the United States, and (c) prejudice judges and juries in the unlawful cases brought against President Trump, his family, and his businesses by his political opponents for purposes of election interference.
If that were true (and it isn’t) then they failed on all three counts. Trump won the election easily in 2024, he’s making absolute bank while being President (perhaps more than doubling his wealth) and all of the lawsuits against him have basically been shut down with Trump coming out on top.
Also, for anyone who has followed the NY Times’ repeated (and somewhat pathetic) attempts to bend over backwards to appease Trump and sanewash his attempt to bring fascism to America by pretending it’s politics-as-normal, this following sentence is ridiculous:
Today, the Times is a full-throated mouthpiece of the Democrat Party.
There is no one who has followed the NY Times’ willingness to “both sides” every crazy thing Trump does who actually believes that.
Then, after nearly five pages of screaming about how liberal the NY Times is, the lawsuit finally says that this lawsuit is not really about the NY Times at all, but rather a book written by two of its reporters (hence the Penguin Random House inclusion on the defendants list).
The subject matter of this action—a malicious, defamatory, and disparaging book written by two of its reporters and three false, malicious, defamatory, and disparaging articles, all carefully crafted by Defendants, with actual malice, calculated to inflict maximum damage upon President Trump, and all published during the height of a Presidential Election that became the most consequential in American history—represent a new journalistic low for the hopelessly compromised and tarnished “Gray Lady.” Defendants’ pre-election goal was to kill three birds with one stone: (a) damage President Trump’s hard-earned and world-renowned reputation for business success, (b) in the process, sabotage his 2024 candidacy for President of the United States, and (c) prejudice judges and juries in the unlawful cases brought against President Trump, his family, and his businesses by his political opponents for purposes of election interference. With President Trump having won the Presidency, Defendants’ goals remain similar and unlawful: tarnish his legacy of achievement, destroy his reputation as a successful businessman, and subject him to humiliation and ridicule.
Specifically, on September 17, 2024, Penguin published a false, malicious, and defamatory book titled “Lucky Loser: How Donald Trump Squandered His Father’s Fortune and Created the Illusion of Success” (the “Book”), authored by Craig and Buettner.
Dude. You won! Has there ever been a sorer winner in the history of politics? My goodness.
Before diving deeper into this mess, it’s crucial to understand what Trump actually needs to prove. As a public figure, he must show “actual malice”—and despite what Trump’s lawyers seem to think, that’s not about being mean to him.
Actual malice requires proving the defendants published something they knew was false or with reckless disregard for the truth (and reckless disregard also means something different than most people assume: it means you have to have ignored evidence that what you were publishing was false). It’s an extremely high bar, deliberately designed to protect robust debate about public figures. It has absolutely nothing to do with being angry or hostile—which is what Trump’s very bad lawyers seem to think it means.
Defendants each desire for President Trump fail politically and financially. Each feels actual malice towards President Trump in the colloquial sense: that is, each—Craig, Buettner, Baker, and Schmidt, as individuals, and the Times and Penguin’s relevant executives as corporations—subjectively wishes to harm President Trump, and each wish to manipulate public opinion to President Trump’s disadvantage to worsen his current and future political and economic prospects. Put bluntly, Defendants baselessly hate President Trump in a deranged way.
That final sentence—”Defendants baselessly hate President Trump in a deranged way”—reads like it was written by a sixth grader having a tantrum, not a lawyer filing a federal lawsuit. More importantly, nowhere in this 85-page screed do Trump’s lawyers actually demonstrate the knowing falsity or reckless disregard that the law requires.
They describe completely typical best practices in reporting as if they’re nefarious, such as the following:
Likewise, the Times and its reporters, including Craig, Buettner, Baker, and Schmidt, have a pattern and practice of contacting President Trump and his team regarding negative stories on a short timeline so as to be able to state that they sought comment—in order to preserve a scintilla of the pretense of neutrality—while making it functionally impossible for President Trump to comment on stories with factual errors, correct those errors, or provide a responsive quote before publication. This policy further enables the Times and its reporters to publish negative assertions about President Trump about which they subjectively harbor doubts as to their truthfulness by permitting them to claim that they sought factual confirmation or denial regarding their stories, even when they subjectively realize that they did not do so in good faith.
Again, that’s not how any of this works, and it’s certainly not how the NY Times’ reporting works. I have plenty of criticisms about the NY Times and its coverage, but the idea that they do this for the reasons stated is ludicrous.
The incredibly weak attempt to argue for reckless disregard… is to claim that because they didn’t interview producer Mark Burnett about Trump’s time on The Apprentice, that’s a form of ignoring counter evidence.
For non-exhaustive examples, and as detailed supra, Defendants published numerous statements regarding President Trump’s role in “The Apprentice” without first securing an interview from primary sources senior to the production of The Apprentice, such as Burnett. Defendants knew that Burnett would likely have contradicted numerous specific false, malicious, and defamatory purported statements of fact that they made regarding President Trump’s role in “The Apprentice” as well as their general narrative regarding President Trump’s role in the show’s success. Defendants therefore did not sufficiently pursue speaking with Burnett even after he did not grant an interview, did not sufficiently seek to obtain his original notes or records, and otherwise failed to engage with Burnett and other potential insiders with “The Apprentice” because they subjectively believed that these sources would have tended to contradict the defamatory lies that they wished to publish about President Trump.
Again, this is not how the NY Times works. If Burnett would have spoken to them (and historically he has refused to talk to the media about Trump beyond a single press statement he made before the 2016 election), the NY Times would have loved it and would have quoted him extensively, as that would be a huge scoop, given how often Burnett has refused to comment on Trump.
There’s also a whole tangent building off of Tulsi Gabbard’s ridiculously misleading statements earlier this year, falsely claiming that the Obama administration tried to fake Russia’s attempts to interfere with the 2016 election, even though multiple investigations (including those led by Republicans) have found that Russia absolutely tried to influence the 2016 election, even if it didn’t have much actual success.
The lawsuit then asks for… $15 billion dollars. How very Dr. Evil. The NY Times, for what it’s worth, is currently valued at less than $10 billion.
A lot of people discussing this lawsuit are claiming two things: that it’s really all about getting a settlement out of the NY Times like he’s been getting out of others, and second that it’s an attempt to get NYT v. Sullivan (the key case that established the actual malice standard) overturned.
While that may be the intent behind this lawsuit, I find both unlikely. Yes, in the lawsuit, Trump lists out a bunch of those corrupt settlements, as if they’re somehow relevant here. But plenty of people have observed that those settlements had nothing to do with the merits of the cases, but rather were entirely about capitulating to a bully and trying to get him off their backs. And, in the case of CBS, it seemed quite clear that the settlement was so that Shari Redstone could get her deal to sell Paramount/CBS to Larry Ellison’s son.
And, when it comes to the NY Times, they have a very good legal team that tends to relish taking on bad faith, bullshit SLAPP style lawsuits. They have a very good track record on those, and don’t often roll over. I would imagine that the legal team feels pretty strongly about defending this case rather than settling.
As for the attack on the actual malice standard, that’s the same thing people claimed about the last Trump lawsuit against the NY Times and it went up in smoke. It’s what people seem to want to claim about a bunch of frivolous defamation claims lately, and while it may be what the lawyers want, they seem like really bad cases to make these arguments. Because the underlying facts are so silly and so obviously bullshit, that the facts make for really bad cases to argue that the NYT v. Sullivan standard is somehow unfair.
Honestly, this just feels like so many of Trump’s lawsuits: engaging in pointless vexatious SLAPP lawfare just to punish media properties that publish negative stories about him. He has long admitted that he enjoys filing such lawsuits. Famously, he once said:
“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
That’s the very definition of a SLAPP suit. And, if you’re wondering, Florida does have an anti-SLAPP law, though it’s a bit quirky compared to other states. Also (more importantly) the Eleventh Circuit (which covers Florida) has said that you can’t use anti-SLAPP laws in federal court.
But, really, if you want proof that this is just Trump trying to punish those who dare to report on him accurately, just witness how he responded to a question about how he felt about Pam Bondi’s unconstitutional claims of punishing people for hate speech, by immediately threatening to go after the journalist who asked the question.
JON KARL: What do you make of Pam Bondi saying she's gonna go after hate speech? A lot of your allies say hate speech is free speechTRUMP: We'll probably go after people like you because you treat me so unfairly. You have a lot of hate in your hate. Maybe they'll have to go after you.
We talked about the celebrity fight du jour between actors Justin Baldoni and Blake Lively when it started, as it seemed for all the world like your typical Streisand Effect story. What began as a workplace harassment complaint of sorts, with Lively initially alleging several instances of inappropriate workplace behavior by Baldoni, has now exploded into a Hollywood court case with competing lawsuits from both parties. While I tend to shy away from the idea of parties purposefully employing the Streisand Effect for wanted attention, as opposed to inadvertently generating unwanted visibility, that sure looks like this is a case of the former. Baldoni and his legal team have taken every step possible to make every bit of this as public as possible, while Lively has done the opposite.
Now, I want to make clear that I don’t really have much of a take as to the merits of the case on either side. I just don’t know enough to have an opinion on the legal drama itself. That is what trials are for, after all.
But that doesn’t mean there isn’t some silliness to talk about as an update here. And when it comes to the status of the trial and what’s happening within it, there are several things going on.
First, like the New York Times before him, Ryan Reynolds has been attempting to exit this whole thing. Lively’s husband was sued alongside his wife for defamation and for interfering in Baldoni’s business relationships. Unfortunately, it appears that Baldoni’s suit may not have met some pretty basic threshholds for making such claims.
“The entirety of Mr. Baldoni’s case appears to be based on Mr. Reynolds allegedly privately calling Mr. Baldoni a ‘predator,’ but here is the problem, that is not defamation unless they can show that Mr. Reynolds did not believe that statement to be true,” Reynolds’ attorneys Mike Gottlieb and Esra Hudson told Us in a statement. “The complaint doesn’t allege that, and just the opposite, the allegations in the complaint suggest that Mr. Reynolds genuinely believes Mr. Baldoni is a predator.”
The statement continued: “Mr. Reynolds’ wife has accused Mr. Baldoni — privately and in multiple complaints — of sexual harassment and retaliation, and as pointed out by Mr. Reynolds’ motion, Mr. Baldoni has also openly spoken about his past of mistreating women and pushing the boundaries of consent. Mr. Reynolds has a First Amendment right to express his opinion of Mr. Baldoni, which should be comforting to a group of people who have repeatedly called Ms. Lively and Mr. Reynolds ‘bullies’ and other names over the past year.”
This is the “actual malice” requirement for defamation at work. Baldoni’s lawyers would need to prove not that Reynolds made the statements they claim he made about Baldoni, but rather that he made them knowing they were false in order to prove defamation. And that is notoriously difficult to prove. Save any smoking gun evidence of Reynolds openly admitting he was spreading lies, it’s very unlikely the defamation claims are going anywhere.
“Earlier today we moved for sanctions against the lawyers and parties responsible for the utterly frivolous claims brought against Ryan Reynolds,” Reynolds’ legal team said in a statement to Us Weekly on Tuesday, May 20. “Justin Baldoni’s lawyer and his clients filed a preposterous lawsuit falsely claiming that Ryan Reynolds extorted people he had never met, that he allegedly interfered with business relationships that do not exist, and somehow defamed people he never said a word about based on unspecified statements that do not appear anywhere in their 391-paragraph complaint. These are not serious claims—they are a desperate ploy for clickbait headlines that have no place in federal court.”
“Mr. Reynolds provided the Rule 11 Plaintiffs and their counsel an opportunity to save face, explaining these claims’ glaring and fundamental defects and urging that they be withdrawn more than 21 days ago,” the docs read. “Unfortunately, the Rule 11 Plaintiffs and their counsel unequivocally refused to do so, offering no response on these defects except to argue that these issues are appropriately resolved by motion to dismiss and may later be supported by discovery. But these claims’ fundamental failings are not about the parties’ dispute as to the legal arguments relating to their claims, or the facts, or even that all of their claims are weak and meritless (which, they are).”
If Baldoni’s real aim in all of this was to make all of this as public and publicity-driven as possible, well, it all kind of tracks from there.
And that’s further backed up by some truly absurd claims that Baldoni’s legal team have made about how to conduct Lively’s deposition. One lawyer said, I suppose perhaps in jest, that Lively’s deposition should be an event the public can attend or see for a fee.
“Since Ms. Lively is open to testifying, let’s make it count,” Baldoni’s attorney Bryan Freedman tells PEOPLE. “Hold the deposition at MSG, sell tickets or stream it, and donate every dollar to organizations helping victims of domestic abuse.”
Here again we see the legal team from one side behaving in a serious way, while the other is not. Whatever the truth of their competing claims against the other, it is certainly not a good look for one side coming off as professional and the other, well, not.
And, frankly, recent news about how Baldoni is stressed over the public legal drama seems quite odd coming from the person who made this very, very public in a way it hadn’t been previously. As entertaining as this all might be, there must certainly be a better way this all could have been handled than whatever this fiasco has turned into.
We came a bit too close to losing one of the most important First Amendment protections in American history — but at least for now we have a tiny bit of good news. Billionaire Steve Wynn, joining a growing chorus of the wealthy and powerful who want to make it easier to sue critics into silence, asked the Supreme Court to gut NY Times v. Sullivan’s vital “actual malice” standard. But last month, the Court turned him down, quietly listing his cert petition among the denied without comment.
While a simple cert denial may seem unremarkable, in today’s environment where foundational speech protections face relentless attack, keeping Sullivan’s protections intact represents a crucial firewall against wealthy interests weaponizing defamation law to silence critics.
The Sullivan standard exists for a very specific and crucial reason: to prevent the wealthy and powerful from using defamation lawsuits to bully critics into silence. The Court rightly recognized that if every minor mistake or inaccuracy about a public figure could trigger ruinous litigation, meaningful public discourse would become impossible. The “actual malice” standard (a confusingly named term that has nothing to do with “malice,” actual or not) requires plaintiffs to prove that false statements were made with knowledge of their falsity, or at least a strong suspicion that the statements were false.
Without this protection, billionaires like Wynn could bankrupt media outlets and critics simply by threatening expensive litigation over any perceived slight or minor factual error. The chilling effect would be devastating — who would risk reporting on corruption or misconduct if a single mistake could lead to financial ruin?
The “actual malice” standard has been so key to American free speech for over half a century that stripping it away would be a disaster of epic proportions.
Over the past decade, we’ve watched a coordinated campaign emerge to dismantle this vital protection. It started with Donald Trump’s calls to “open up” libel laws, but quickly evolved into a sophisticated infrastructure of MAGA-crafted nonsense legal scholarship and judicial skepticism. Federalist Society lawyers who once defended Sullivan began portraying it, practically overnight, as constitutional overreach (giving you a clear suggestion of just how “principled” some of those lawyers really are).
Basically, once Donald Trump said “jump” regarding defamation law, the MAGA legal infrastructure quickly began figuring out just how they should jump.
Most worryingly, two Supreme Court justices have explicitly called for overturning Sullivan. Justice Thomas led the charge (conveniently forgetting his own support for the standard during his confirmation hearings), followed by Justice Gorsuch, who was so eager to attack the standard that he relied on a deeply flawed law review article and had to quietly revise his dissent after its errors were exposed. We covered this disturbing evolution in detail in our recent podcast with “Murder the Truth” author David Enrich.
This cert denial suggests that, at least for now, there aren’t four justices ready to revisit Sullivan. We know Thomas and Gorsuch want to overturn it, and Alito likely agrees (he rarely strays from Thomas on such matters). But they needed a fourth vote to grant cert, and apparently couldn’t find one.
While it’s somewhat reassuring that two-thirds of the Court seems unwilling to demolish this crucial First Amendment protection, the fact that three justices appear eager to do so remains deeply concerning. The coordinated campaign against Sullivan isn’t going away — if anything, it’s gaining momentum. This cert denial bought us some time, but the next wealthy plaintiff with a grudge is surely already preparing their petition.
For now though, this firewall against frivolous defamation suits by the powerful remains intact. And in an era where free speech faces unprecedented challenges from all directions, we’ll take what small, but important, victories we can get.
Billionaires are already deleting parts of our government, as well as various safety mechanisms on the internet that sought to minimize hate and abuse. Do we also want them to be able to rewrite our understanding of the First Amendment?
Steve Wynn’s latest Supreme Court petition represents a dangerous escalation in the ongoing assault on press freedom and the First Amendment. While self-proclaimed free speech warriors claim to champion unfettered expression, their actions reveal a different agenda: securing immunity from criticism while maintaining the power to silence their critics through legal intimidation.
The weapon of choice? Dismantling New York Times v. Sullivan, the Supreme Court decision that has protected robust public debate for sixty years.
This attack on Sullivan is just one prong of a broader assault on free speech. The same powerful figures who demand unrestricted platforms to spread misinformation and bigotry are simultaneously working to silence their critics through legal intimidation. Their strategy is clear: reshape social media and communication platforms to amplify their preferred speech while using litigation to crush dissenting voices.
The goal isn’t free speech — it’s controlled speech.
For decades, NY Times v. Sullivan has stood as the primary bulwark against wealthy individuals using defamation lawsuits to silence their critics. Decided in 1964, it represents the Supreme Court’s most important attempt to resolve a fundamental tension: It is that case where the Supreme Court had to finally confront the inherent conflict between the First Amendment’s prohibition on any law that inhibits speech, against the long-standing tradition of defamation laws that that… inhibit speech.
The Court’s solution was elegant but hinged on an unfortunately named concept: “actual malice.” Despite its inflammatory name, the standard has nothing to do with ill will or hatred. Instead, it creates a simple test: public figures can only win defamation cases if they prove the speaker either knew their statement was false or showed “reckless disregard” for its truth.
This high bar serves a crucial purpose. Minor factual errors, differences of interpretation, or even heated rhetoric about public figures aren’t enough to trigger liability. Only deliberate lies or statements made while willfully ignoring clear evidence of falsity can qualify as defamation. And plaintiffs have the burden of proving that the defendant knew that it was a lie when they published or spoke.
This has been a cornerstone of US free speech for sixty years. It makes tremendous sense once you understand it, as it means that defamation of a public figure can really only stand if the speaker was deliberately seeking to lie about the target of the defamation.
Without that, you would get the kind of case that NYT v. Sullivan was about in the first place: one where minor factual errors, or even disagreements of interpretation, might lead to full-blown (costly) defamation cases that would not just be ruinous to defendants, but would create massive chilling effects that lead them to silence concerns and choose not to speak up about the rich and the powerful, who can file frivolous lawsuits with wild abandon.
This is precisely why the wealthy and powerful are now gunning for Sullivan. The ruling stands between them and their ability to weaponize defamation law against critics. And billionaire Steve Wynn’s latest Supreme Court petition represents their most direct attack yet.
The case emerged from Wynn’s attempts to silence reporting about his alleged misconduct going back decades. In 2018, as a prominent casino magnate and Republican megadonor, Wynn faced serious accusations. The WSJ had a big expose accusing him of a wide variety of harassment and sexual abuse. A few months later both the Las Vegas Review-Journal and Reuters reported on police files in Las Vegas, in which there were claims of sexual assault by Wynn dating back to the 1970s.
Rather than address the substance of these reports, Wynn turned to the courts, suing the Associated Press and reporter Regina Garcia Cano for defamation.
Wynn’s legal strategy revealed exactly why Sullivan is so crucial. His entire case hung on a single text message where Cano called one of the police reports “crazy” — which Wynn claimed proved she doubted its truth. But as the Nevada Supreme Court recognized in two separate rulings, calling something “crazy” doesn’t prove the reporter thought it was false — it might simply reflect the shocking nature of the allegations.
The case was dismissed under Nevada’s anti-SLAPP law, with the court delivering a forceful defense of both Sullivan and anti-SLAPP protections:
In designing its anti-SLAPP statutes, Nevada recognized the essential role of the First Amendment rights to petition the government for a redress of grievances and to free speech, and the danger posed by civil claims aimed at chilling the valid exercise of those rights. 1997 Nev. Stat., ch. 387, at 1363-64 (preamble to bill enacting anti-SLAPP statutes). To limit that chilling effect, the statutes provide defendants with an opportunity —through a special motion to dismiss— to obtain an early and expeditious resolution of a meritless claim for relief that is based on protected activity
The court systematically dismantled Wynn’s arguments, explaining that neither the “implausibility” of allegations nor a reporter’s desire to publish quickly amounts to “actual malice.” Most importantly, it recognized that allowing such weak evidence to support defamation claims would effectively gut press freedom.
Wynn argues that the Chicago complaint was implausible and points to the failure by AP Respondents to investigate further before publishing as evidence of actual malice. Again, while the complaint contained unusual elements, that does not mean that the gist of the allegations reported by AP Respondents—that Wynn sexually assaulted a woman in Chicago in the 1970s—was untrue or that AP Respondents should have held serious doubt about those allegations. As explained, because all identifying information in the complaint was redacted, it was not possible to meaningfully investigate further as long as that information was unknown. Wynn again points to Garcia Cano’s text describing the complaint as “crazy” to establish her subjective doubt. But calling the complaint “crazy” is not clear and convincing evidence that Garcia Cano believed it to be false or that she recklessly disregarded whether it was true. Wynn also attempts to establish reckless disregard by highlighting AP Respondents’ motivation to publish the story quickly. But news organizations often have a motivation to publish stories before their competitors, and in the absence of serious doubt regarding the veracity of the statement, such a desire does not establish a reckless disregard for the truth
In New York Times Co. v. Sullivan, this Court “overturn[ed] 200 years of libel law” to constitutionalize an actual-malice standard for public-official defamation plaintiffs. This Court extended this actual-malice innovation to public figures in Curtis Publishing Co. v. Butts.
Compelled by this Court’s constitutional decisions in Sullivan and Curtis Publishing Co., States, like Nevada, have incorporated the actual-malice standard into their anti-SLAPP statutes. As a result, those States require public figure plaintiffs to prove the merits of their case— including actual malice—before any discovery occurs (or with only “limited” discovery). State courts are split over the application of the actual-malice standard’s clear and convincing evidence burden to public figure plaintiffs in anti-SLAPP cases and whether it violates a plaintiff’s right to a civil jury trial.
These are the questions presented:
Whether this Court should overturn Sullivan’s actual-malice standard or, at a minimum, overrule Curtis Publishing Co.’s expansion of it to public figures.
Should this Court decline to overturn or otherwise cabin Sullivan and Curtis Publishing Co., whether the Seventh Amendment’s right to a civil jury trial is incorporated against the States and, if yes, whether the application of the clear-and-convincing actual-malice standard at the early anti-SLAPP stage of litigation violates a plaintiff’s Seventh Amendment right to a civil jury trial.
Wynn’s petition represents the most direct assault yet on press freedom in America. If successful, it would demolish the constitutional guardrails that have protected journalism for six decades. But the timing isn’t accidental.
Several current Supreme Court justices have been laying the groundwork for this moment. Justice Clarence Thomas has repeatedly signaled his hostility to Sullivan, repeatedly using Supreme Court orders lists as a personal blog to argue for Sullivan’s demise. Justice Gorsuch has joined this chorus at times, and all signs suggest Justice Alito would be sympathetic to their position.
The other issue is that this particular Supreme Court has been way more willing to (1) completely upend “settled” Supreme Court precedents, and (2) increasingly willing to cherry pick out-of-context arguments as ignorant amateur historians, to pretend that they can justify some barbaric practice as consistent with how things were at the time the Constitution was written.
Hell, given that duels were still common at the time of the First Amendment, I half expect the Court to argue that duels are a perfectly acceptable response to impudent language.
Normally, such a case would be a non-starter. This is widely settled law. While Justice Scalia had whined about the NYT v. Sullivan for years, there was no sense that anyone would legitimately try to overturn it.
While it’s unclear whether four justices will vote to hear the case, or whether five would vote to overturn Sullivan, the mere possibility should alarm anyone who values investigative journalism and robust public debate. A victory for Wynn would hand the wealthy and powerful their ultimate weapon: the ability to silence critics through ruinous litigation, regardless of the truth of their reporting.
The attack on Sullivan isn’t just about one billionaire’s grudge. It’s part of a broader campaign to reshape the First Amendment into a tool for protecting power rather than speaking truth to it.
When it comes to Judge Reed O’Connor, the only thing more predictable than his partisan rulings is the Supreme Court overturning them. But that hasn’t stopped him from giving the green light to Elon Musk’s ridiculous SLAPP suit against Media Matters. O’Connor’s problematic decision basically means that Elon has won. Even if the eventual case goes against Elon and rightly points out that Media Matters did nothing wrong, the cost of the case and the wider impact on speech has been a disaster.
When Elon sued Media Matters for publishing an article that everyone (including Elon) admits is true, people pointed out the many reasons why the case was terrible and should get tossed out. But first among them was the question of venue.
The case was filed in the Texas courtroom of Judge Reed O’Connor, even though none of the parties had any clear connection to Texas. The plaintiff was X Corp, a Nevada entity that (at the time) was headquartered in California (it has since announced it is closing down its headquarters there, but still), suing Media Matters (based in Washington DC), its CEO Angelo Carusone (based in DC) and one of its writers, Eric Hananoki (based in Maryland).
There is no connection to Texas other than that Elon Musk (who was not a direct party to the case) has other companies there. But Judge O’Connor just recently ruled in this very same case that you can’t assume that just because Elon controls both Tesla and ExTwitter that the companies are connected. So, you would think that this would further extend to saying Elon’s presence in Texas is meaningless.
Just last week, another judge, Amit Mehta in Washington DC, called out that a related investigation by Missouri AG Andrew Bailey (kicked off in response to a request from Elon Musk to pile on against Media Matters) was clearly and obviously an unconstitutional attack on Media Matters’ protected speech.
But Judge O’Connor marches to the beat of his own partisan piper. Recently, Joe Patrice at AboveTheLaw gave a short summary of Judge O’Connor’s history of extremist partisan decisions that even this Supreme Court felt the need to overturn:
While it wasn’t a huge surprise that O’Connor refused to recuse himself from the case over his Tesla shares, it’s still been bizarre to watch him act as if there’s a credible complaint here. First, O’Connor allowed discovery to go ahead before the motion to dismiss was decided (which isn’t entirely uncommon but in a case like this was still aggressive). And then last week he rejected the motion to dismiss entirely.
Media Matters had pointed out the very clear flaws in the claimed Texas jurisdiction and venue. But O’Connor comes up with a nonsensical excuse that most other judges would have laughed at: that because Hananoki’s articles mentioned Oracle’s ads, and Oracle is (temporarily) headquartered in Texas, there is jurisdiction over Hananoki.
Notably, Oracle only moved its headquarters to Texas during the pandemic and recently announced it was moving them again to Nashville. It’s also a meaningless point, given that Oracle allows employees to be remote, its founder (Larry Ellison) works mostly from Hawaii, its CEO, Safra Catz, lives in Florida, and many other execs remain at its original headquarters in California. The Texas HQ has always been more of a paper move than anything real.
But it’s enough for Judge O’Connor, even though Oracle is not a party to the action:
The body of the Hananoki articles targeted, among others, Oracle, a Texas-based company that placed ads on Plaintiff’s platform. Indeed, the Hananoki Original article included Oracle in the headline.
Judge O’Connor then also points out that this means that “the harm suffered” may have occurred in Texas:
This targeting of the alleged tortious acts at the headquarters of Texas based companies is sufficient to establish specific jurisdiction in Texas. See Johnson v. TheHuffingtonPost.com, Inc., 21 F.4th 314, 318 (5th Cir. 2021) (“The key question, under Calder, is whether the forum state was ‘the focal point of the [alleged libel] and of the harm suffered.’” (quoting Calder v. Jones, 465 U.S. 783, 789 (1984))). As just described and as set out below, each Defendant engaged in the alleged tortious acts which targeted harm in, among other places, Texas.
But… that’s wrong? I mean, just fundamentally. The harm alleged in the complaint is not to any of the “Texas-based companies.” Rather it’s X Corp., which, at the time, was not a Texas-based company in any sense. Doesn’t matter according to O’Connor.
Accordingly, the evidence taken as true shows Hananoki targeted his conduct at Texas.Because Defendant Hananoki “purposefully directed [his] activities” at Texas, and Plaintiff’s claims against Hananoki are “deriving from, or [are] connected with” those activities, specific jurisdiction exists
I’ve seen plenty of weird jurisdiction and venue cases in my two and a half decades covering the internet (internet jurisdiction questions can be crazy…) but I’ve never seen a justification quite like this one.
Judge O’Connor says that Media Matters itself as an entity would avoid jurisdiction in Texas if the site was “passive” but if it’s “interactive” then it’s fine. I’ve never heard this distinction before, and it makes no sense.
Defendant’s affidavit describes the website as interactive. Since the website is interactive, the traditional jurisdictional rules apply. Johnson, 21 F.4th at 319 (website is interactive if it solicits information, makes purchases, and click on ads.) These rules seek to determine whether Plaintiff’s suit results from Media Matters purposefully targeting Texas. Id. For the reasons stated above, Media Matters targeted Texas…
He then quotes another case to say that “a defendant who targets a Texas company with tortious activity has fair warning that it may be sued there”:
(“if you are going to pick a fight in Texas, it is reasonable to expect that it be settled there.”)
Except that… no one picked a fight in Texas. This is a made-up thing. Again, literally none of the parties were based in Texas.
Getting past the jurisdiction questions first, there’s still the issue of venue (i.e., is this the right place to file this lawsuit). And the obvious answer again here is “absolutely fucking not.” But, this is Judge O’Connor, so of course he thinks it makes sense.
Plaintiff sufficiently alleges a substantial part of the events occurred within the Northern District of Texas. Plaintiff alleges that Defendants waged a campaign against X’s blue-chip advertisers. It alleged AT&T, headquartered in the Northern District, was one of its blue-chip advertisers targeted by Defendants. The gravamen of Plaintiff’s claims are that Defendants intended to negatively impact Plaintiff’s blue-chip clients, including a client based in this district. This sufficiently establishes that a substantial part of the events at issue in this lawsuit occurred here.
Judge O’Connor rushes through the rest of the motion to dismiss. On the issue of no breach of contract because there was no such contractual breach, Judge O’Connor says that in Texas you can have tortious interference in merely getting someone to end a contract even without a breach (which is quite incredible).
Judge O’Connor does the judicial equivalent of a “who can really say” shrug regarding the argument that any harm of ExTwitter allowing ads next to neo-Nazis on ExTwitter came from ExTwitter, not Media Matters accurately pointing out the ads next to neo-Nazis:
Finally, Plaintiff plausibly alleges that Defendants proximately caused their harm. Proximate cause requires proof of both cause-in-fact and foreseeability. Defendants present a compelling alternative version of events to Plaintiff’s. However, the Court will not “choose among competing inferences” at this stage. … Accordingly, Plaintiff’s Amended Complaint alleges sufficient facts to state a claim of tortious interference with contract.
Media Matters had (correctly) pointed out that the claim of business disparagement requires there to be “false and disparaging information published” and that it has to have been done with actual malice (a pretty high standard, which includes that Media Matters knew or highly suspected the material was false at the time).
Incredibly, Judge O’Connor apparently writes the “false” part out of this requirement altogether, saying that disparaging is enough. His analysis of “malice” ignores the actual standard (which is reckless disregard for the truth), and says (incorrectly) that the frequency and tenor of the statements supports malice (which is not the standard, according to the Supreme Court, which seems to need to keep correcting O’Connor).
First, construing the facts pled by Plaintiff in the light most favorable to it, that Defendants manipulated and intended to deceive Plaintiff’s advertisers is sufficient to support the first element. Plaintiff alleges Defendants acted with malice and without privilege by asserting Defendants’ reporting was false and the “frequency and tenor of Media Matters’ statements disparaging X and the safety of advertising on the X platform” supports an inference of actual malice. And finally, Plaintiff has pled a plausible claim regarding special damages in that Defendants tortious acts undermined “advertisers’ faith in X Corp.’s abilities to monitor and curate content.
Almost every similar case I can think of dismisses on the actual malice point by pointing out that merely claiming “actual malice” does not make it actual malice. You have to show the reckless disregard for the truth. But here, O’Connor not only ignores the fact that ExTwitter admits in its complaint that nothing is false, he ignores the requirements of actual malice.
This is pretty stunning.
Unfortunately, this fits with O’Connor’s priors, in which he appears to bend over backwards to come up with excuses to support “his side.” If that means ignoring the Supreme Court standard, so be it. Tragically, all this is going to do is add (massively) to the costs facing Media Matters, as with the discovery order and O’Connor’s fee shifting order about whether or not he needed to recuse over his ownership of Tesla stock.
The non-profit has already laid off a bunch of employees because of the costs of this lawsuit. This decision more or less guarantees an approximately ten-fold increase in costs (after the motion to dismiss is when things get ridiculously expensive).
In other words, even if Media Matters were to win this case down the road, it has already lost. The cost of this kind of lawsuit is punishment, and O’Connor has now made multiple rulings that exact that type of punishment at soul-crushing levels.
And thus, Elon has successfully suppressed Media Matters’ speech. Never, ever, let anyone tell you he supports free speech after engaging in this kind of activity. He is actively abusing the judicial system to suppress speech. And he’s doing it gleefully with support from fans who also, falsely, insist they favor free speech.
Elon isn’t letting up either. Almost before the ink was dry on the order denying the motion to dismiss, ExTwitter filed a motion to compel Media Matters to hand over all sorts of confidential “donor-related documents.” Remember when Republicans absolutely hated any move to force non-profits to disclose donors? Apparently, that only applies to organizations that support Republicans. If you work against them, you should be forced to reveal your donors.
This ruling is, itself, an attack on free speech, in a case brought by someone who falsely claims to be a free speech absolutist. The end result is a travesty and a disaster for speech.
