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