President Donald Trump responded to the release of tapes from CNN this weekend showing a strong anti-Trump bias and agenda at CNN. The tapes were no surprise to many of us who have criticized CNN for its open advocacy against Trump and slanted coverage of political and legal issues. However, Trump again returned to his continuing call for lawsuits against the media over the issue: “Does this sound like a good, or even great, lawsuit?” The answer is no, Mr. President, it does not.
Project Veritas, a conservative activist group, published undercover recordings from a former CNN employee who revealed conversations where President Jeff Zucker called for a focus on impeaching Trump as well as CNN employees discussing Zucker’s personal agenda against Trump. I previously wrote about the strange symbiosis of Zucker and Trump as they used each other as foils for their own agendas.
I will not repeat my criticism of CNN’s coverage, which has often highlighted legal analysis that misinformed viewers of “conclusive” evidence for criminal charges or impeachment over the last three years. It is distressing to watch CNN hosts and reporters shed any objectivity in offering counter arguments to every move of the White House or downplaying countervailing stories. For example, I recently published a column highlight to concerted effort to downplay any problems with the suspicious business dealings of Hunter Biden. There is much to legitimately criticize in this President without having to run continual and open advocacy pieces against the Administration.
The Project Veritas “whistleblower” says that many CNN employees are upset over the anti-Trump agenda and the loss of virtually any coverage of other news beyond Trump. I have a lot of friends at CNN and I have heard from some of them about the concern over focus and slanting of the coverage.
For his part, Trump relished the tapes and tweeted
“Project Veritas-Obtained Undercover Videos Highlight Jeff Zucker’s (@CNN) Campaign To Destroy Trump. Videos Reveal @CNN’s BIAS!’ @TuckerCarlson @FoxNews Does this sound like a good, or even great, lawsuit?”
President Trump has previously — and unwisely — called for changing libel laws to combat what he calls “fake news.” I have previously criticized Trump for his calls for greater liability of the media for its coverage of the controversies surrounding his Administration, including his desire to sue Saturday Night Live. For example, due to the publication of a false quote from Trump by New York University Professor Ian Bremmer, Trump demanded a change in the law and ignoring that our defamation standard is anchored in the first amendment. Ironically, Trump himself was recently accused of posting a doctored clip of Nancy Pelosi and has repeatedly retweeted false or defamatory statements.
The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and Trump is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, someone like Trump must show either actual knowledge of its falsity or a reckless disregard of the truth.
I am not even sure what the lawsuit would look like in this controversy. You cannot sue a newspaper or network for bias without triggering a host of constitutional protections — starting with the protection of a free press. It would not be a defamation case, even if such a case could withstand the actual malice standard. You cannot even bring some form of shareholder action because you think the coverage is slanted.
Trump has long treated litigation as an extension of business strategy (when he was in real estate in New York) or political strategy (after he entered politics). Indeed, he has lost a number of court cases where his counsel have made extreme arguments, including the recent loss in New York to withhold his tax records on the basis of the untenable claim that a sitting president cannot be subject to criminal process of any kind.
Whatever truth is found in this expose by Project Veritas, it will remain a political and journalistic issue — not a judicial issue.