Alan Dershowitz just filed a whale of a lawsuit against CNN, though it could end up beached in short order under controlling case law. The Harvard Law professor emeritus is demanding $300,000,000 in compensatory and punitive damages from CNN for misrepresenting his legal arguments in the Trump impeachment trial. In fairness to Dershowitz, the coverage of the trial by CNN was dreadful with intentionally and consistently slanted coverage of the evidence, standards, and arguments. However, the objections raised by Dershowitz are likely to be treated as part of the peril for high-profile figures operating in the public domain. In other words, you can complain about the weather but you cannot sue the storm.
I have long been a critic of the open bias shown by CNN under Jeff Zucker who admitted that his attacks on Trump were part of a ratings move. In the age of echo-journalism, CNN has sought to attract viewers who only want to hear that Trump is committing clear crimes, will eventually (if not imminently) be jailed, and that Trump supporters are knuckling-dragging, gun-toting zombies marching to his tune of white supremacy and authoritarianism.
However, to prevail against a media company, a public figure must meet a higher standard for defamation. While Sarah Palin just secured a favorable ruling, it is rare to be able to maintain such actions. The damage demand also seems outlandishly theatrical and raises the question if the lawsuit is one last effort to clarify the record rather than seriously pursue relief. The amount includes $50,000,000 in compensatory damages and $250,000,000 in punitive damages for a total of $300,000,000. Dershowitz is worth a great deal of money but it is hard to see how CNN’s coverage resulted in a loss of $50 million, particularly when he was widely criticized for his arguments by academics and commentators alike.
This issue will turn on Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979). Dershowitz is clearly a full public figure.
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. 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,
Dershowitz must show either actual knowledge of its falsity or a reckless disregard of the truth.
Dershowitz’s complaint would face a serious challenge in front of most judges. His objection focused on how his legal argument was presented by CNN. While I stated that I thought Dershowitz did an impressive job in parts of his presentation, particularly on the first day, I was highly critical of his theory of the history and standard for impeachment. Indeed, I thought it was a critical mistake to incorporate his theory in the Senate trial, a move that the team seemed to later shy away from in argument. Nevertheless, I felt Dershowitz was treated unfairly by critics and the media.
Dershowitz’s action focuses on how CNN presented his argument and failed to include countervailing statements to make his position look extreme, if not unintelligible. The coverage often focused on his answer to Sen. Ted Cruz (R, Tx), when he was if it mattered whether there was a quid pro quo arrangement in Trump’s dealings with Ukraine.
“The only thing that would make a quid pro quo unlawful is if the quo were somehow illegal. Now we talk about motive. There are three possible motives that a political figure could have. One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own political interest and the third, which hasn’t been mentioned, would be his own financial interest, his own pure financial interest, just putting money in the bank. I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”
Thus, Dershowitz noted that on the “public interest” motive, Dershowitz said: “Every public official that I know believes that his election is in the public interest, and mostly you’re right–your election is in the public interest—and if a president does something which he believes will help him get elected—in the public interest—that cannot be the kind of quid pro quo that results in impeachment.” On the second motive, Dershowitz blurred the motive with the first. He noted that if a president thought his election was in the public interest, then working for his own political interest is a non-criminal motive. He was struggling to explain that this is part of the “mixed motives” that make these cases very difficult, a point that some of us have made for years.
However, Dershowitz objects that CNN cut his argument down to a final line to air “a one-sided and false narrative that Professor Dershowitz believes and argued that as long as the President believes his reelection is in the public interest, that he could do anything at all – including illegal acts – and be immune from impeachment.” This editing, he claims, left the impression that he was advancing an argument “preposterous and foolish on its face” and “falsely paint[ed] Professor Dershowitz as a constitutional scholar and intellectual who had lost his mind.” It added that, “[w]ith that branding, Professor Dershowitz’s sound and meritorious arguments would then be drowned under a sea of repeated lies.”
The comparison to the Palin lawsuit is telling. Palin was portrayed by the New York Times of having inspired or incited Jared Loughner’s 2011 shooting of then-U.S. Rep. Gabrielle Giffords, D-Ariz. The editorial was on the shooting of GOP Rep. Steve Scalise and other members of Congress by James T. Hodgkinson, of Illinois, 66, a liberal activist and Sanders supporter. The attack did not fit with a common narrative in the media on right-wing violence and the Times awkwardly sought to shift the focus back on conservatives. It stated that SarahPAC had posted a graphic that put Giffords in crosshairs before she was shot. It was false but it was enough for the intended spin: “Though there’s no sign of incitement as direct as in the Giffords attack, liberals should of course hold themselves to the same standard of decency that they ask of the right.” In reality, Giffords district was simply one of many “targeted” by Republicans as possible flips in the next election.
That misrepresentation was not a matter of interpretation. The New York Times took a clearly unrelated posting and portrayed it as incitement for murder. Dershowitz conversely is undermined by the very fact that his argument was so nuanced. It was subject to different views on its meaning and application. For example, Dershowitz also claimed that “for it to be impeachable, you would have to discern that he or she made a decision solely on the basis of corrupt motives.” That raises the uncertainty of what it makes to negate an impeachment article if a president can claim that was acting in part for his own election and his election was in the public interest.
I agree with Dershowitz that his arguments were given short shrift and widely misrepresented. However, such legal arguments are subject to interpretation. It is doubtful that any court will use defamation law to address such different takes on a multi-faceted argument. Moreover, CNN can show that it not only played the full Dershowitz argument live but that it made available the full argument to interested viewers. It also interviewed Dershowitz who objected to the coverage.
Notably, Dershowitz is most aggrieved by the failure to include his emphasis on any impeachment acts as being “illegal.” However, that was also a contested part of his theory. Indeed, I testified in both the Clinton and Trump impeachments that an impeachable offense did not necessarily have to be a crime. Like Dershowitz, I objected to coverage on this point including outright misrepresentation of what was said at the Trump hearing by the Washington Post’s Jennifer Rubin (the Post has never corrected the error despite the transcript). I did not however sue for defamation. I am not alone. Rubin repeatedly published misrepresentations about actual court decisions without correction from the Post because such columns are popular even if they are clearly wrong.
The argument made by Dershowitz starts out with his controversial emphasis on an impeachable offense being illegal and then explores the motive of such crimes. He fairly notes that the starting premise was that we are talking about whether an illegal act is alleged. However, the motive is critical to that threshold determination and the rather fluid description of motives leads back to the same concern: that a president can virtually always present a determinative motivational defense under this argument.
The defamation standard is rooted in the First Amendment and designed to give ample “room at the elbows” for the exercise of free speech and the free press. This complaint would turn that liberating standard into a virtual straight jacket for the media. Again, even though I am highly sympathetic to Dershowitz and his complaint over the coverage, I cannot imagine a court or a jury signing of on such a ruling.