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. 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.

    When is an opinion piece not actually presented as an opinion, but as a fact? Should a publisher be afforded 1st amendment protections by publishing defamatory and malicious articles in their opinion section?

  2. 4 Years Ago “The New Yorker” Documented A Lengthy List Of Falsehoods Promoted By Then Candidate Trump

    This article, published June 23 of 2016, noted that Trump appeared as a guest on Alex Jones’ radio program. The article then goes on to note that Trump, like Jones, displays a reckless disregard for the truth. Several examples are cited including an assertion that Obama was colluding with ISIS.

    https://www.newyorker.com/news/daily-comment/donald-trump-and-the-amazing-alex-jones/amp

    1. If you had actually followed events in Syria you would know that this was the conclusion of the Defense Intelligence Agency within the Department of Defense(doc released under FOIA)…that’s one of the main reasons they went after Adm. Flynn. The intelligence assessment stated that the US, Turkey, Saudi Arabia, Qatar, and the other gulf Sunni states were backing the jihadi groups in an attempt to take down Assad. If you had followed the war you would have heard of Operation Timber Sycamore as well.

      Seth, you’re the most ignorant(or deceptive) person that posts on this blog. You’re a sick human being.

      FYI, I’m not voting for anyone in the next election. Trump talks lots of sht and you could use any of a number of examples, but this isn’t one.

      1. Ivan: this is from the article regarding Trump’s groundless allegation:

        The memo in question was a declassified 2012 field report from Iraq, compiled by an unspecified source at the Defense Intelligence Agency. isis, as now constituted, did not exist at the time. The field report described the state of the Syrian opposition, made no policy recommendations, and could not in any way be interpreted as “stating” American “support” for isis or for its predecessor, Al Qaeda in Iraq. Michael Morell, a former C.I.A. director, demolished the Breitbart story, and Trump, in a column for Politico.

        1. You’re lies are grotesque, deliberate, and obvious to anyone paying attention:

          ————–

          From the DIA memo which you don’t quote because it is damning:

          “there is the possibility of establishing a declared or undeclared Salafist principality in Eastern Syria, and this is exactly what the supporting powers(US, SA) to the opposition(Muslim Brotherhood, Al-Qaeda in Iraq) want, in order to isolate the Syrian regime.”

          From Michael Flynn’s interview with Mehdi Hassan which is even more damning:

          Hasan: “In 2012 the U.S. was helping coordinate arms transfers to those same groups [Salafists, Muslim Brotherhood, Al Qaeda in Iraq], why did you not stop that if you’re worried about the rise of quote-unquote Islamic extremists?”

          Flynn: “I hate to say it’s not my job…but that…my job was to…was to to ensure that the accuracy of our intelligence that was being presented was as good as it could be.”

          ////
          Your BS: “The field report described the state of the Syrian opposition…could not in any way be interpreted as “stating” American “support” for isis or for its predecessor, Al Qaeda in Iraq.

          1. Ivan, I have no idea what source you’re quoting. It could be from Alex Jones or some obscure blog. See if you can find this in The Wall Street Journal or The Hill. This could be one of those stories that only played in certain sources.

          2. Ivan

            Seth is Enoch Poor is John Burgoyne is Peter Shill is Paint Chips

            He will say anything for attention because b!tchy little girls can’t help it

  3. The 1st Amendment is about what the USG cannot do to block free expression. For example, when Pres. Andrew Jackson conspired with the US Army and Georgia militias to confiscate the printing press of the Cherokee Phoenix, that was a clear violation of the 1st Amendment.

    It is not the USG suing the NYT, it’s the Trump Campaign. I’m glad to see blatant infowarfare practices be challenged, and the anti-defamation laws are the major deterrent we have. I vehemently reject the Sullivan decision lowering the rights of “public persons”, a category not appearing anywhere in the law, nor possible to define with any clarity. If there are going to be anti-defamation protections in law, then every US Citizen is entitles to equal protection under that law.

  4. 2 Days Ago Rush Limbaugh Claimed The Corona Virus Is ‘Just The Common Cold”

    Donald Trump recently awarded The Medal Of Freedom to Limbaugh who has functioned as America’s leading source of disinformation for 30 years.  Just 2 days ago Limbaugh told his listeners that the Corona Virus ‘scare’ is just a plot to ‘take down Donald Trump’.  

    Even rightwing media had problems with Limbaugh’s assertion.  Whatever Limbaugh ‘really’ said was widely misunderstood.  And that’s always been the problem with Limbaugh; constant misunderstandings.  This pattern calls to mind an old Chinese saying: “The man who’s always in trouble ‘is’ trouble” 

    https://www.rushlimbaugh.com/daily/2020/02/26/im-the-only-guy-getting-the-coronavirus-right/

    1. The 1st Amendment restricts the government’s use of official powers to restrain expression. It doesn’t apply to private parties, in this case, the Trump Re-election Campaign.

  5. Motion to dismiss on grounds of First Amendment right of free speech and Free press. There is a squid behind the plaintiff.

  6. How do you find using false charges and porn protected speech in a public forum? Or find it acceptable to accept a flip and false ‘sorry bout that’ more than just a meaningless slap on the wrist? Free Speech and Freedom of The Press does not include false speech nor the freedom to print or air same especially when it’s repetitive and used against some while other get a pass?.

    Did the NY Times ever admit to using the same 18 year write off on taxes that Clinton sent through Congress and signed prior to using it or the NY Times also used?

  7. Turley claims: ” 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.” Gee, Jon, I’d like to know what “facts” you are referring to. Trump refused to cooperate with Mueller’s investigation. After agreeing to sit for at least an interview, he strung Mueller’s team along for months and months, and then refused. Instead, he signed answers to either written interrogatories or a written deposition, drafted by Giuliani, that were evasive and incomplete, then he refused to supplement or amend the responses. He refused to provide documents. TRUMP DID NOT COOPERATE. TRUMP WAS NOT EXONERATED because he hid the true facts and refused to cooperate, plus he got away with it. However, there are at least 10 instances of obstruction of justice laid out in the Mueller Report, explaining how Trump sabotaged the Mueller investigation. That is why it is beneath you, Turley, to repeat the Fox News talking point that it is a “fact” that Trump didn’t collude with Russia. It is especially ironic in the context of this BS lawsuit that even you admit will go nowhere. All part of Trump’s attempts to intimidate critics.

    Let’s talk about the bigger political story today, shall we? How about Trump claiming that the drop in the stock market was due to fears induced by what people heard at the Democratic debate on Tuesday night. The market fell 1,000 points on Monday, and almost the same amount on Tuesday, but the debate wasn’t until Tuesday night after the markets closed, so riddle me this: how is it possible that the Democratic debate that happened after both of these market drops spooked investors, spurring the sell offs? Or, is this just yet another lie and demonstration of Trumpian arrogance and narcissism? He takes credit for the strong economy he inherited, but won’t give Barak Obama credit, and then tries to blame Democrats when the market drops. Want to know what really spooks investors? The incompetent jackass who dismantled the rapid response team from the CDC, DHS, NIH and other agencies.

    Then, there is der fuerher’s contradiction of the CDC doctors: Oh, we’ll have a vaccine very, very soon. No, King Donnie, we won’t. It’ll take not less than 12 to 18 months. Next, it was the claim of 15 cases, when the actual number is 60. Then he contradicted the doctors, denying that it was “inevitable” that there will be more cases. He claimed, without any facts whatsoever, that the number will be 0 in a few days. Then he appointed Mikey Pence because the “Indiana model” for health care was so successful. First of all, Pence has no medical background. Secondly, states do not set communicable disease policy–that’s done by the CDC. Third, due to Mikey’s alleged religious piety, when he was Governor of Indiana, he refused to approve a needle exchange program for Scott County, IN, just north of Louisville, until the epidemic of HIV due to needle sharing got out of control. At least 200 more people got HIV that wouldn’t have but for Mikey’s pious religious beliefs. Yeah, Mikey Pence is who we want handling this crisis, all right. The entire performance last night was Trump’s feeble attempt to stem the stock market from going into freefall. The only reason he put Pence in charge is because he can get Pence to lie for him, and we know he will lie as this crisis unfolds.

  8. Glad to see the resurgence of defamation cases that were too long ignored as a civil remedy. Guess people got wise after Bollea v. Gawker when the Hulkster body-slammed Gawker so bad it left the ring never to return. It wasn’t technically a defamation case (privacy violation instead) but it was close enough to send shivers of existential fear through the media. Good.

    1. What if plaintiff’s attorney shows a pattern of collusion between NYT and FBI/DOJ to smear Trump with leaks? Is there a first amendment right to defraud the public through the inter-subjective verification of false allegations between the press and law enforcement?

  9. The fact that it’s Trump’s “campaign” filing the suit hurts the case. But it’s a strong case anyway. While actual malice is hard to prove, what Frankel wrote looks plenty libelous to me. The effect of calling something an “overarching deal” should not be minimized. You can’t have a “deal” without the parties knowing they made one. The piece implies that Frankel knows something he’s not telling. Does he? And why would he want us to think that? No, there’s more than just opinion there.

  10. Jonathan: It is not surprising Trump is suing the New York Times over Max Frankel’s opinion piece. Since day one Trump has rallied against the “fake news” for publishing articles and opinions he does not like. Like most authoritarian figures Trump wants to muzzle the press–except perhaps for FoxNews and Rush Limbaugh. But, as you point out, Trump has an uphill battle. But New York Times v. Sullivan doesn’t stop Trump from at least trying to intimidate the press. He learned a valuable lesson from Roy Cohn, his early mentor, who taught Trump that when attacked counterattack and sue. While this tactic often worked in the rough and tumble world of New York real estate it is supposed to be different when you are the President of the United States. Most presidents develop a thick skin when it comes to press criticism. But not Trump. His narcissistic personality reacts negatively to any perceived slight or criticism. He demands not only “loyalty” from everyone in his administration but believes the press should show the same respect. Adolf Hitler didn’t face a New York Times v. Sullivan when he used the sweeping powers granted him by the Reichstag to shut down the press in Germany. It is not beyond the realm of speculation to believe Trump would like to have the same powers. He already believes he has unlimited and unconstrained powers under the 2nd Amendment. So, perhaps, his libel lawsuit is an attempt to test the waters to see if his conservative majority on the Supreme Court will endorse claim on absolute power.

    1. I wonder how you would respond if someone were to recklessly publish demonstrably false and damaging comments about you? Not well, I expect. Obama was far more intimidating and lawless to the press than Trump has been.

  11. The 2nd Amendment says I have a right to a gun but it does not say I have a right to use it to rob someone. The First Amendment says I have a right to free speech, but it does not say I have a right to destroy someone with libelous statements I know to be false without consequences. Part of the sorry state of journalism is down to the belief known falsehoods can be published without consequences.

  12. Trump has made many libelous comments on his twitter feed about many, many people. It is absurd that he is the one suing.

    Anyway, what do you think are the chances Trump pursues this case to the point where he needs to sit down for a deposition (after never sitting down with Mueller on this topic). I would put those odds at zero.

    1. Good point. I’d like to see the Times forget about filing motions to dismiss the complaint and, instead, push it toward a trial. In that way the Times could force Trump to refuse to be deposed in the pre-trial. And we could all clearly see that he is a bluffer who will fold and slink away at the first push back.

  13. I’d love to see Sullivan torched. The deal was corrupt. The Court gives the press all sorts of unwarranted immunity, in return the press gives absolute deference to the courts, writes fawning pieces about their ‘landmark rulings’ &c. Trump’s quite the riverboat gambler, and it would be most agreeable to see him win. The Sulzbergers and their minions are bad people, and deserve it good and hard.

  14. It looks to me like this is a means to bring attention to these kinds of articles being published in the so-called newspaper of record, and other outlets.

    Like him or not, the Truth is the media has lied and lied and lied about Trump and many loosely affiliated with him. That Trump is some sort of Manchurian Candidate. That Mueller is going to bring the goods against him. Any day now, he’s going to resign. Compared to, “Trump lied about the size of his inaugural crowd,” it’s much more significant.

    I’m no Trump fan, but I do believe we need a vibrant and trustworthy independent media for the best functioning of our country.

    The media looks like a PR arm of the Democratic Party, and loses trust with each article like this that is printed.

    The more interesting question is what to do about it? We The People don’t run these news organizations. As long as there is this TDS phenomenon, the Times is going to get monetary support by enough people buying the lies.

    Even more interesting is when a Bloomberg type spends a $billion buying news outlets to print lies, protected by the First.

  15. I think Trump is right to test the waters of libel. There are a couple of suits out there and only one of them has to make to SCOTUS, so that Sullivan gets a rethink. You have at least three judges voting against Sullivan now.

    And think how much fun this will be if it gets to the discovery stage?

    1. See my earlier response to Mr T. Trump will never allow the case to go to trial as he will refuse to allow himself to be deposed and the complaint will be dismissed as a result.

      1. RDKay – it is the discovery of the NYTimes that is going to be fun. 😉 Was it WaPo who settled with Nick Sandmann probably because they did not want discovery?

        1. If the complaint is not dismissed, the Times will cooperate in depositions of their persons – but Trump sure as hell will not submit himself to cross-examination-style questioning under oath.

      1. The complaint avers that the Times lied about Trump. Of course he would have to answer questions under oath in a deposition.

        1. Anyway, whatever Squeeky says must be discounted as she has never explained why she has assumed a nom de plume the same as the notorious Charles Manson cult killer Lynette Squeeky Fromme.

            1. Well, Manson cultist Fromme is a would-be killer. But she was too dumb to know how to use the pistol to shoot at Ronald Reagan.

              Back to “our” Squeeky’s alias: If someone intentionally dons the personna of a crazed cult killer, it would be at least interesting to know why, as well as knowing how that influences “their” opinions.

              So far as I myself – you can refer to me (if you must) as “their,” “them,” “s/he,” “mustard,” or whatever becomes PC.

  16. “In order to prevail, West must show either actual knowledge of its falsity or a reckless disregard of the truth.”

    SCOTUS never intended to permit anyone to be defamed without consequence. I think Trump has a better than fair chance to prevail here under that standard, and any “actual malice”. About damn time somebody did something.

    Squeeky Fromm
    Girl Reporter

  17. Prof. Turley is probably correct in his assessment, but one cannot help but feel that if Trump had “lost” his election because of media lies, that freedom of speech might have gone too far. Somewhere, the bias of the media must be stopped.

  18. Like the student told the professor-
    “ If I were to call you a SOB, you would probably flunk me, right?”
    “Yes, I would!”
    “But my first Amendment right says I can think what I wish, right?”
    “Yes, it does!”
    “Then, I think you are a SOB.”

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