President Trump’s re-election campaign filed a defamation action in Georgia against CNN on Friday for publishing an opinion piece by Larry Noble, a CNN contributor and former general counsel for the Federal Election Commission. Based largely on an opinion piece by a well-known Trump critic, the lawsuit is weak and unlikely to succeed. The complaint offers more heat than light as a defamation action.
The Trump campaign alleges that CNN made “false and defamatory” statements about seeking Russia’s help in the 2020 election. Specifically, the complaint charges that CNN claimed Trump’s campaign “assessed the potential risks and benefits of again seeking Russia’s help in 2020 and has decided to leave that option on the table.”
The basis is Larry Noble’s CNN story, entitled “Soliciting dirt on your opponents from a foreign government is a crime. Mueller should have charged Trump campaign officials with it.” The title and the piece is clearly an opinion from someone who has spent much of his career in the area of federal election law. I disagree with the column, which states with little foundation that the Trump campaign “assessed the potential risks and benefits of again seeking Russia’s help in 2020 and has decided to leave that option on the table.”
The obvious problem is that the Russian allegations were a matter of intense public and political debate for years. While the complaint cites the denials of White House staff and associates, this is an area rife with opinion and debate. Liability for such commentary would create a deep chilling effect on the political speech across the political spectrum.
We have previously discussed President Donald Trump’s repeated calls for changing libel laws and suing his critics, particularly the New York Times. His campaign brought such a defamation lawsuit against the New York Times recently 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.” As in this case, the selection of an opinion piece made that case especially difficult to litigate and again raises questions of the motivation behind the litigation.
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.
The campaign must prove that the defendant had “actual malice” where it had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false. That is the standard that Trump dislikes because it insulates the media from the threat of litigation. Most of the stories that Trump has railed against would not be actionable under this standard. However, Trump seems to be relishing the idea of bringing financial pressure on the media through litigation — the very goal of Sullivan and his contemporaries to bring the media to heel.
Notably, the complaint tries to establish malice by referencing the investigative stories of Project Veritas footage featuring Nick Neville, a Media Coordinator at CNN. In the videotape, Neville states that CNN’s chief executive, Jeff Zucker, has a personal vendetta against the
President. There is no question that Zucker has rebranded CNN as an anti-Trump network in the age of echo-journalism. Hosts are often unrelenting in their attacks on the Administration. It further notes:
John Bonifield, a Supervising Producer at CNN, states in the Project Veritas footage that CNN’s coverage regarding Russia’s alleged interference with the 2016 election was “mostly bullshit” and that the President “is probably right to say…you are witch hunting me.”
Christian Sierra, a Media Coordinator at CNN, states in the Project Veritas footage that Mr. Zucker wanted impeachment to be the top story every day, that “everyone at the network” complains about the amount of such coverage, and that CNN’s “Democratic interviews are like softballs, compared to the Republicans.”
Cary Poarch, a CNN employee in the Washington, D.C. bureau, states in the Project Veritas footage that CNN “purports to be facts first, and that’s clearly not the case.”
It further notes that Noble has a long-standing record of anti-Trump statements alleging criminal and ethical misconduct by President Trump.
I have been a critic of the CNN coverage for years, which I view as openly hostile and biased. Despite my respect for individual CNN hosts, I agree with the critics that much of the coverage shows a consistent and fragrant advocacy against Trump. However, that does not answer the question over defamation, particularly in dealing with an opinion piece. Such commentary fall squarely within the core of protected speech under the first amendment.
While the campaign cites Noble’s inflammatory language, it only reinforces the view that this is all opinion: “Trump cheats and lies, and when caught, lies again and claims the right to make he rules. He claims defeats as victories, takes credit for anyone’s success and blames his failures on others. And the Republicans have told him they are fine with that, so he’s just getting started.”
This brings us back to the motive of these filings, which seem cathartic at best and retaliatory at worst. This is precisely why the Supreme Court crafted the constitutional standard for defamation actions against public officials. While I agree with the criticism of CNN coverage, I strongly disagree with this lawsuit and I believe that it will (and should) be rejected in the interests of free speech.