Trump Campaign Sues The New York Times For Libel

We have previously discussed President Donald Trump’s repeated calls for changing libel laws and suing his critics, particularly the New York Times. Now his campaign has done just that with a defamation lawsuit against the New York Times for allegedly publishing false claims in an op-ed written by Max Frankel on March 27, 2019, entitled “The Real Trump-Russia Quid Pro Quo.” The selection of an opinion piece makes this case especially difficult. In addition to suing a newspaper for the alleged defamation of a public official, it is doing so for a piece that is identified as opinion and appears on the opinion page. In my view, the column is protected speech under the First Amendment.

The Complaint alleges that the column was published when the New York Times was already aware that the forthcoming Mueller Report would find that there was no collusion with the Russians. Yet, it notes, that the Frankel column stated “There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions. The Trumpites
knew about the quid and held out the prospect of the quo.” Indeed, the first line (and the one preceding this cited line) said “Collusion — or a lack of it — turns out to have been the rhetorical trap that ensnared President Trump’s pursuers.”

The Complaint further alleges that this was a demonstration of malice by the Times generally and Frankel particularly:

“It is not entirely surprising that The Times would publish such a blatant false attack against the Campaign. There is extensive evidence that The Times is extremely biased against the Campaign, and against Republicans in general. This evidence includes, among other things, the fact that The Times has endorsed the Democrat in every United States presidential election of the past sixty (60) years. Also, Max Frankel, the author of the Defamatory Article, described himself in an interview as ‘a Democrat with a vengeance.'”

The problem with such arguments is that this is an opinion written about a public official. 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 he 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, West must show either actual knowledge of its falsity or a reckless disregard of the truth. 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

In this case, the Trump campaign is alleging actual knowledge as well as a history of malice against the President.

Simply saying that something is your opinion does not automatically shield you from defamation actions if you are asserting facts rather than opinion. However, courts have been highly protective over the expression of opinion in the interests of free speech. This issue was addressed in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing piece that stated in part:

[t]he proposal to name Bertell Ollman, Professor at New York University, as department head has generated wrong-headed debate. Politicians who jumped in to oppose Ollman simply for his Marxist philosophy have received a justifiable going-over from defenders of academic freedom in the press and the university. Academic Prince Valiants seem arrayed against McCarythite [sic] know-nothings . . . But neither side approaches the crucial question: not Ollman’s beliefs, but his intentions. His candid writings avow his desire to use the classroom as an instrument for preparing what he calls ‘the revolution.’ Whether this is a form of indoctrination that could transform the real function of a university and transcend limits of academic freedom is a concern to academicians who are neither McCarthyite nor know-nothing.”

The column goes on to take apart Ollman’s past writings, including what Ollman stated were clear misrepresentations. The court acknowledges that “the most troublesome statement in the column . . . [is] an anonymous political science professor is quoted as saying: ‘Ollman has no status within the profession but is a pure and simple activist.’”

Ollman sued but Judge Kenneth Starr wrote for the D.C. Circuit in finding no basis for defamation. This passage would seem relevant for secondary posters and activists using the article to criticize the family:

The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

A reader of this particular Evans and Novak column would also have been influenced by the column’s express purpose. The columnists laid squarely before the reader their interest in ending what they deemed a “frivolous” debate among politicians over whether Mr. Ollman’s political beliefs should bar him from becoming head of the Department of Government and Politics at the University of Maryland. Instead, the authors plainly intimated in the column’s lead paragraph that they wanted to spark a more appropriate debate within academia over whether Mr. Ollman’s purpose in teaching was to indoctrinate his students. Later in the column, they openly questioned the measure or method of Professor Ollman’s scholarship. Evans and Novak made it clear that they were not purporting to set forth definitive conclusions, but instead meant to ventilate what in their view constituted the central questions raised by Mr. Ollman’s prospective appointment.

I do not agree with Frankel’s column, but I believe that it is protected speech. On one level, the Complaint could make out the defense for Frankel. His column seems to anticipate, not contradict, the finding of no direct conspiracy or collusion in stating “there was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy.” Instead, he suggests that there was a mutual alignment of interests from the fact that Trump would offer favorable foreign policy changes for Russia.

Frankel qualifies his statements in hypothetical terms:

“Perhaps, somewhere along the line, Russians also reminded the Trump family of their helpful cooperation with his past financial ventures. Perhaps, also, they articulated their resentment of Mrs. Clinton for her challenge as secretary of state to the legitimacy of Mr. Putin’s own election. But no such speculation is needed to perceive the obvious bargain reached during the campaign of 2016.”

Again, there is much to disagree with in Frankel’s column which reads like a cathartic release from any duty to be fair or balanced. It is an effort to fend off the expected rejection of the long-standing claims of clear evidence of a conspiracy with Russia. The column dispenses with the need for such evidence by claiming that it was all understood — a convenient pivot for those who did not want conspiracy theories to die with a demonstration of the facts.

Nevertheless, such opinions are protected forms of speech. Indeed, what Frankel was engaging in was the pinnacle of protected speech in raising his belief that a conspiracy with the President did exist but not in a direct or traceable form. That is an important concern that is shared by a large number of Americans.

This brings us back to my criticism of President Trump’s desire to change libel laws. Ironically, this is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The New York Times had run an advertisement referring to abuses of civil rights marchers and the arrest of Martin Luther King Jr. seven times. The Montgomery Public Safety commissioner, L. B. Sullivan, sued for defamation and won under Alabama law. He was awarded $500,000 — a huge judgment for the time. Sullivan’s lawsuit was one of a number of civil actions brought under state laws that targeted Northern media covering the violence against freedom marchers. The judgments represented a viable threat to both media and average citizens in criticizing our politicians.

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. 

Frankel’s column falls within this “breathing space.” It is protected not because he was right or fair but because protecting his speech protects us all . . . including President Trump.

Here is the complaint: New York Times Complaint

58 thoughts on “Trump Campaign Sues The New York Times For Libel”

  1. Pure PR from Trump to use and tell his cult rally how the “liberal” media and the enemy of the people are out to get him. A talking point from Trump to use….fake lawsuit.

    1. The fake news is the enemy of the people. How could so-called news organizations that intentionally mislead the public be called anything else?

  2. Just another day of lying because the NYT is desperate for someone, anyone, to buy there bird cage paper. Cue Peter Shill who loves to lap that sh!t up


    After failing to disclose her husband’s work for the Warren campaign, NYT columnist pens ‘The Case for Elizabeth Warren’

    The New York Times has launched a new feature this week in which its opinion columnists make the case for each of the top 2020 Democratic candidates.

    The New York Times’s Frank Bruni argued on behalf of former South Bend, Indiana, Mayor Pete Buttigieg. The New York Times’s David Brooks argued on behalf of former New York City Mayor Michael Bloomberg.

    Naturally, the New York Times’s Michelle Goldberg argued for Sen. Elizabeth Warren. I say “naturally” because Goldberg spent much of 2019 promoting the senator’s candidacy without disclosing the fact that her husband’s firm consults for the Warren campaign.

    Goldberg has written extensively in the last year on the 2020 Democratic primary, including six articles that include explicit praise for Warren and eight articles that attack the senator’s 2020 opponents. The most interesting thing about these 14 articles is that the author never mentions the fact that her husband, Matthew Ipcar, is the executive creative director at a digital strategy firm that received its first check from Warren for President on Jan. 8, 2019, a month before the campaign formally launched.

    To Goldberg’s credit, she discloses in her new article, “The Case for Elizabeth Warren,” that her husband is tied to the senator’s presidential bid. But she has not always been so transparent.

    In April 2019, for example, more than two months after the Warren campaign launched, Goldberg praised the 2020 candidate for taking “the lead among Democratic presidential candidates in calling for impeachment proceedings to begin [against President Trump],” adding that the senator’s opponents “should follow her.”

    The article has no note alerting readers to the relationship between the senator’s White House run and Ipcar’s firm.

    In June of the same year, she declared Warren “one of the … clear winners” of the first Democratic debate.

    Again, no disclosure.

    She wrote in August that the senator was “widely viewed as shining in both the June and July Democratic debates”; she praised the 2020 candidate for criticizing members of her own party for their supposed hesitance to impeach Trump; she even wrote an article defending a Warren campaign aide.

    On the trail in Iowa, in August 2019, Goldberg wrote Warren is “sincere and unscripted” and has “the comforting aspect” of a “benevolent” parent.

    At the same time that she has built up Warren as a model legislator and exceptional presidential candidate, the New York Times columnist has been attacking the senator’s 2020 Democratic primary opponents.

    Goldberg referred unflatteringly to Hawaii Rep. Tulsi Gabbard as a “chameleonlike” onetime “darling” of the crowd that supports Sen. Bernie Sanders. She has written entire articles calling on 2020 hopefuls to drop out, including one titled “Howard Schultz, Please Don’t Run for President” and one titled “The Wrong Time for Joe Biden.”

    Goldberg claimed it would be “a bad idea” for Democrats to nominate Biden, adding in yet another article, “I don’t want Biden to be the nominee for ideological reasons.” She wrote an article quoting a potential Democratic primary voter who said she was “livid” about Biden’s “repeated gaffes.”

    She even wrote in June 2019 that New York City Mayor Bill de Blasio “shouldn’t run for president.”

    On Jan. 27, Goldberg cautioned readers about Sanders and his “legions of trolls” who antagonize Democrats who “stand in their way.” The article itself is just one giant shrug over the question of whether Sanders can defeat Trump. She concludes ultimately that she has no idea, but not before telling readers the “Sanders juggernaut still scares me” and that she is “terrified” his polling will not hold up against Republican attack ads.

    None of these articles mention the apparently relevant fact that her husband’s firm consults for the Warren campaign. They do not mention that the firm was founded by the Massachusetts senator’s chief strategist, Joe Rospars. They certainly do not mention that the firm has already collected more than $1 million from Warren for President, according to Federal Election Commission records.

    Warren announced her candidacy in February 2019. Between then and Feb. 26, Goldberg noted in only two 2020- and Warren-related articles that her husband is tied to the campaign, stating directly that he “is consulting for” the senator. Those two lonely mentions of consulting came on Jan. 13 and Feb. 7 of this year after nearly an entire year of Goldberg’s very active, disclosure-free advocacy for her husband’s client. On Feb. 27, she disclosed once again.

    The New York Times has yet to provide a reasonable explanation for why one of its employees was able to write so many articles in favor of Warren without disclosing the fact that her husband is connected to the senator’s campaign. The New York Times has offered no explanation for this, even after the matter was raised by the Washington Examiner as well as other news publications.

    Goldberg is entitled to her opinion. That is what the most powerful and influential news organization in America pays her for. But her husband works for Warren. He even did some consulting work for the Massachusetts lawmaker prior to her launching her candidacy, as the New York Times columnist herself mentioned twice in January 2019. Any sentence Goldberg writes that can be seen as promoting Warren or attacking the senator’s 2020 competitors should be followed by a note disclosing her husband’s financial stake in the Massachusetts lawmaker’s candidacy. This is standard news media ethics.

    On Thursday, Goldberg and the New York Times got it right. But why did it take so long?

  3. Sorry. “Trump” and “libel laws” in the same article just made me laugh so hard I got hiccups.

  4. Elizabeth Warren wanting to remove content from social media, Barack Obama wanting misleading ads removed from SC television, and now Trump suing the NYT for telling lies?

    They all need to butch up and stop whining.

  5. It reminds me of that D-List cameo-actor who played a constipated billionaire on TV, who kept claiming that President Obama was born in Kenya.

    Now *that* was real “presidential harassment” and total fake news.

    Trump and his team of lawyers who themselves need lawyers should go after that conspiracy-pushing dumbbell as well. Open up those libel laws!

    1. Dave,

      But El Presidente knew his lies were good for the country. (Borrowing from Dershowitz.)

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