Trump Sues CNN Yet Again And It’s As Dumb, If Not Dumber, Than His Previous Failed Lawsuits Against CNN
from the not-how-anything-works dept
I’m only a human being, and not a machine, so it’s beyond my ability to keep track of all the times that Donald Trump has threatened to sue CNN for defamation, or actually carried through, on his threat. I will just note that it seems to happen a lot. None of these lawsuits have actually been successful in terms of winning the litigation. As always, they get tossed out. They appear to be fairly obvious SLAPP suits, designed to (1) cause pain to CNN by being costly and time consuming to defend and (2) convince his extremely gullible base of supporters that he’s “fighting” the evil media.
Back in July he had formerly reputable lawyer James Trusty send CNN a defamation threat letter. Since then, Trusty has been appearing in a bunch of Trump-related nonsense. It appears that Trump and Trusty have followed through on their threat and sued CNN on a bizarrely stupid defamation theory. It’s so bad that lawyers are discussing how it could lead to sanctions. Indeed, it’s so bad that if Trump’s legal theory is legit, then Trumpists themselves should be scared, because it basically suggests that having negative opinions about politicians is defamation.
To kick things off, rather than accurately calling him former President Trump, the complaint refers to him as President Donald J. Trump. Which is just pathetic. But, really, there’s so much nonsense in just the opening paragraph alone that entire case studies could be written on why this is stupid:
The Plaintiff, President Donald J. Trump, has been a long-time critic of the Defendant, Cable News Network, Inc. (“CNN”)—not because CNN does a bad job of reporting the news, but because CNN seeks to create the news (“fake news,” as the Plaintiff has characterized it in public statements). Beyond simply highlighting any negative information about the Plaintiff and ignoring all positive information about him, CNN has sought to use its massive influence— purportedly as a “trusted” news source—to defame the Plaintiff in the minds of its viewers and readers for the purpose of defeating him politically, culminating in CNN claiming credit for “[getting] Trump out” in the 2020 presidential election. CNN’s campaign of dissuasion in the form of libel and slander against the Plaintiff has only escalated in recent months as CNN fears the Plaintiff will run for president in 2024. As a part of its concerted effort to tilt the political balance to the Left, CNN has tried to taint the Plaintiff with a series of ever-more scandalous, false, and defamatory labels of “racist,” “Russian lackey,” “insurrectionist,” and ultimately “Hitler.” These labels are neither hyperbolic nor opinion: these are repeatedly reported as true fact, with purported factual support, by allegedly “reputable” newscasters, acting not merely with reckless disregard for the truth of their statements (sufficient to meet the definition of the legal standard for “actual malice”) but acting with real animosity for the Plaintiff and seeking to cause him true harm (the way “actual malice” commonly is understood). CNN has been given the dreaded “Pants on Fire!” designation by PolitiFact for its stories comparing Trump to Hitler. Still, it persists, requiring the time and expense of filing the instant lawsuit.
So, it’s a bold move to basically say that I, the plaintiff, can insult the defendant (calling them “fake news”) but they cannot have anyone call me a racist. Just to be clear, all of the statements listed (contrary to what the complaint says) are some combination of opinion and/or rhetorical hyperbole, which literally cannot be defamatory.
But you can tell that the real strategy here is to take an axe to the actual malice standard set forth in NY Times v. Sullivan. As we’ve explained many times in the past, the actual malice standard is both extremely important and a very high bar (on purpose). It applies to public figures, because the reasoning is (correctly) that public figures get a lot of criticism, and it would be dangerous for free speech if those public figures could drag everyone to court over every minor criticism, or just some random minor inaccuracies.
Many lay people think that “actual malice” means what it sounds like — that someone wants to hurt your reputation. But that’s not what it means. As a lawyer once put it to me, actual malice is not actually about malice. The standard is that it has to be said knowing that the statement is false, or with “reckless disregard” for the truth. And even reckless disregard is commonly misunderstood. It doesn’t just mean without looking carefully (it doesn’t even mean merely being negligent). It means that the speaker had serious doubts about the accuracy when it was stated.
But here, Trusty is attacking those precedents. Note that he distinguishes the “definition of the legal standard” from “the way ‘actual malice’ commonly is understood.” The statements meet neither criteria, but either way, it’s a dumb way to open your defamation lawsuit.
They then make it clear that they’re hoping to use this lawsuit to strike down the actual malice standard, probably because they know that Clarence Thomas hates the actual malice standard and has been practically begging for a case to strike it down. Perhaps they’re hoping that with Thomas, Alito, and Trump’s personally appointed crew of Justices, they can destroy actual malice.
Even though the actual malice standard is met here, in circumstances like these, the judicially-created policy of the “actual malice” standard should not apply because “ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.” Suits like these do not throttle the First Amendment, they vindicate the First Amendment’s marketplace of ideas.
Um. No. Suing the media for criticizing a former president for lying and misleading people (and supporting an actual insurrection) is not “vindicating” the marketplace of ideas. It’s trying to shut people up for criticizing you.
It’s been pointed out so many times in previous cases, but I think it needs to be pointed out again that calling someone a racist is not defamation. It’s clearly an opinion. Anyone can think anyone else is a racist based on their own observation and beliefs, no matter how silly.
Calling the comparisons to Hitler defamatory is equally, if not more, stupid. Especially since the complaint even highlights how CNN’s Fareed Zakaria made it clear he wasn’t actually calling Trump Hitler (though, even if he did that would still be protected and non-defamatory):
A focal point of the report is a discussion of the ascendancy of Hitler and comparisons to the Plaintiff, interspersing discussion of Hitler and Nazi Germany with footage of the Plaintiff. Id. Zakaria states in the report, “Let’s be very clear. Donald Trump is not Adolf Hitler.” Id. But the disclaimer is lost in an otherwise direct and graphic analogy.
I mean, come on. They put in the complaint that when CNN did the historical comparison to Hitler, they flat out said “Let’s be very clear. Donald Trump is not Adolf Hitler.” And somehow they still think it’s defamatory? This is beyond nonsense.
To prove that “the effect on viewers” of the segment is to make them believe that Trump is Hitler, they quote a Twitter rando saying:
“The similarity between Hitler in 1930s Germany and Trump in 2016 are notorious. And the way you made the segment by on and off alternate images of both. Even if not apparent before, you made it now.”
But, uh, highlighting the similarities between two people or two periods is… just pointing out historical similarities. It’s not defamatory. It’s just saying “this looks like this” which is, by definition, opinion.
Then it gets even worse. Trump (whose fans regularly blast Politifact as a biased tool of the libs, as it has highlighted tons of false statements by Trump) then tries to argue that because Politifact debunked a CNN commentator’s opinions, that proves it’s defamatory.
On August 25, 2019, CNN broadcast on its “Reliable Sources” program hosted by then-anchor Brian Stelter, an interview with psychiatrist, Allen Frances. In the broadcast, Frances claimed that “Trump is as destructive a person in this century as Hitler, Stalin, and Mao were in the last century.” Frances’ statements were analyzed by PolitiFact, a website that holds itself out as “a fact-checking website that rates the accuracy of claims by elected officials and others on its Truth-O-Meter.” PolitiFact determined that Frances’ statements regarding the Plaintiff merited the “Pants on Fire!” rating of untruth.
That statement is, once again, obviously opinion. Frances is giving his opinion that Trump has been “as destructive” as some past problematic leaders. That Politifact went after those claims doesn’t magically make them defamation. And if it did then Donald Trump and his supporters would all be facing tons of defamation lawsuits for their own comments on tons of other people, up to and including Joe Biden.
If Trump supporters had any internally consistent logic beyond “whatever Trump says is great” they might realize that should this lawsuit succeed, they’d be opening themselves up to tons of defamation claims.
It goes on and on in the vein, making it quite clear that every statement they’re mad about is obviously opinion and non-defamatory.
They similarly focus (as the initial threat letter made clear) on the idea that calling Trump’s lying about the 2020 election results “The Big Lie” is somehow defamatory, because Trump doesn’t believe he’s lying. But that’s not how any of this works. Once again, calling something a lie is an opinion. Calling Trump’s ongoing lying about the election “The Big Lie” is basic shorthand that highlights his many, many lies about the election.
I’m not even going to go into the examples, they’re all so silly.
Then the complaint gets to the actual claims, and from the very start it does the one thing that immediately proves your defamation lawsuit is silly nonsense: claiming “defamation per se.” As with “actual malice” and “reckless disregard,” defamation per se is one of those legal concepts around defamation that most people misunderstand. Lawyers, however — especially ones with a track record like James Trusty — should know what it means. And it’s not what they say it is in the complaint.
People think “defamation per se” means “obviously defamation” or “really bad defamation.” But defamation per se really only matters on the damages side of thing. For most defamation claims, you have to show what the damages of the statements were. Defamation per se basically says this statement was obviously so bad that we don’t even need to show the damages, and therefore can assume that there was damage. But to show defamation per se, you still have to show that the statements… are actually defamatory. Which Trump does not do in this complaint.
But in the claims they start out with defamation per se, saying:
When a public official, or political candidate, is likened to Hitler, it is defamation per se as the statement imputes a characteristic or condition incompatible with the proper exercise of that public office
Basically, this is arguing that comparing any politician to a negative political figure in history is defamation per se. That’s ridiculous. And, again, that would make most of Trump’s supporters at risk for defamation claims for their statements about Joe Biden, Kamala Harris and many others.
The whole complaint is hilariously bad and should be tossed out quickly. It’s a waste of time and space and judicial and legal resources.
But, oh, of course, you know that Trump is using it to fundraise like crazy. Almost immediately after filing the lawsuit, he sent out the following:
“I am SUING the Corrupt News Network (CNN) for DEFAMING and SLANDERING my name,” the potential 2024 presidential candidate said in a fund raising email Tuesday that encouraged supporters to contribute $5 or more. “Remember, when they come after ME, they are really coming after YOU.”
And, really, that should tell you all you need to know.