Dershowitz Sues CNN For $300,000,000 In Defamation Action

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.

Dershowitz responded

“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.

 

 

90 thoughts on “Dershowitz Sues CNN For $300,000,000 In Defamation Action”

  1. 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.”

    It sounds like Turley is at least agreeing that the argument that Dershowitz intended to make was also, preposterous and foolish on its face. And Turley, notably, was the only other lawyer (not hired by Trump) testifying for Trump’s legal position.

    So is it really defamation if someone makes a patently stupid legal argument, which is slightly more nuanced than the one portrayed on TV without the editing?

  2. Epstein’s Lawyer and Co-Conspirator says his reputation was damaged because some argument he made on TV about Trump’s impeachment was quoted in relevant part and not in its entirety.

  3. “for it to be impeachable, you would have to discern that he or she made a decision solely on the basis of corrupt motives.” Is the motive of wanting to screw his political opponent corrupt?

    The essence of Dershowitz’s argument is that Trump did it in his own political interests believing that it would be in the best interests of the nation. This is so much horse apples. That lets a political assassin off the hook. That lets anyone who does anything corrupt off the hook. That falls in the category of the child who murders his mother and father and then pleads for mercy being an orphan. That is so much BS that only a lawyer could come up with it.

    Trump broke the law seeking assistance from a foreign government to dis his opponent. Motives have nothing, absolutely nothing to do with it. Dershowitz should get an award for being able to keep a straight face while arguing that load of dung. This is tantamount to the response to the question of why a crook robs banks, cuz that’s where the money is.

    Also, and most importantly, this is the same logic Trump has expounded from the beginning, long before his political life, that he can do anything he wants because he is Trump. Since becoming President Trump added on, because he is President. America must pay attention to this arbitrary immunity BS, regardless of Democrat or Republican. Immunity equates to lack of accountability as much as freedom to maneuver. The higher the office, the higher the responsibility, not the greater the immunity. Dershowitz is arguing for America to go in the wrong direction, the direction of Putin, Erdogan, Lil Kim, etc. Trump belongs in a cell with that other guy who is doing 389 years.

  4. After Dersh wins, CNN should be compelled to compensate for years of “fake news” and run “EQUAL TIME 24/7” for President Trump!

    Ditto the MSM, including late night network “comedy.”

  5. Sullivan was a piece of judicial “junk” — hubristic legislating from the bench. Our egalitarian system holds very high the notion that all are equal before the law. Therefore, whatever anti-defamation deterrence you or I could exact through torts should be available to Mr. Dershowitz. Nowhere in the lawbooks will you find any definition of “public person”. SCOTUS had to invent this category in order to rule as it did in Sullivan to eclipse the rights of high-profile individuals. Yet, there is simply no argument that character-assassination be protected by the 1st Amendment, and there is ample reason behind the wisdom of deterring it via anti-defamation law: so that persons of extraordinary accomplishment and leadership skill will run for public office.

    Would someone please explain how a publisher’s freedom to mount intentional character slurs is more crucial to our republic than the willingness of good citizens to come forward and run for leadership positions in government? Go ahead, take a whack at it.

  6. My only question is why only $300 Why not $6TRILLION?

    The weight of a lawsuit should be assessed on its legal and factual merit and not on these absurd payers which are solely arrived at to generate maximum press coverage.

    It is rather bush league but sadly de rigueur these days.

  7. It seems to me that if you are intentionally not telling the truth in order to make money, it could be interpreted as actual knowledge of its falsity or a reckless disregard of the truth. I am a big 1st Amendment guy but the wholesale slander machine that has become “journalism” needs a counterbalance.

  8. Interesting. Biased ACLU vs biased Media while Dershowitz collects. No chance of CNN whining out a ‘we sorry’ and making it stick this time.

  9. CNN broadcast something that they knew was not true at the time of broadcast. As for malice, if intent follows the bullet then malice should follow the lie.

  10. “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.”

    What difference does his personal wealth make? IT should not be an issue here or in the litigation!

    Seems to me you are spouting same BS that other lib’s spout. And WHO ARE YOU TO JUSTIFY THE CRITICISM by academics and commentators alike?
    This is an issue of protecting one’s reputation that likely may have been smeared by CNN, and it wouldn’t be the first time either. Maybe it’s time for Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) be examined for the one-lopsidedness of this ruling, which seems patently unfair. Is this an instance where Lady Justice is NOT BLIND?

  11. I kinda like the case. Proving actual malice ought to be a cinch. CNN hates everybody that it disagrees with politically, and that might be a manifest fact worthy of judicial notice. Wouldn’t it be great to see Brian Seltzer ( I know it’s Stelter) or Wolfman Blitzer crossexamned!!

    1. Mespo — In support, I would add that CNN et al. are extremely reliable in their malicious journalistic-like fear porn:
      If the president is a democrat, they’ll extol the virtues of democrats and decry republicans as moral failures.
      If the president is a republican, they’ll decry republicans as moral failures and extol the virtues of democrats

      I find it oddly and supremely ironic that, in sweepingly general terms, the same demographic that trusts CNN, MSNBC, ABC, C/NBS, etc. denounce fans of “wrastlin'” (of the TV variety, as opposed to Greco-Roman wrestling) as rubes for thinking it’s real.

    2. heck yes this will make for some amusing depositions. have at them Dersh. I think it’s fantastic. put those insurance company mercs to work and raise that coverage premium on CNN– TODAY

      1. Kurtz, how are you not a simple minded tribal rube? Fox does exactly the same , if not more, but here you are cheering your side vs the other without any principle or standards at all.

        1. The tribe is the principle. You just don’t get it. You’re in the tribe you just don’t see it.

          And i don’t mean the tribe of Jacob, per se, lest anyone understand. But the sons of Abraham are welcome if they fit.

          “Tribalism” is very real today, though it may not follow the bloodlines of ages past strictly. Tribalism keeps the tribe alive. Life, hence, life itself, is the normative principle behind it.

          1. Those of us with principles and sincere hope for the human future strive to avoid tribal urges. You’re either too dumb or without principles to celebrate the mindlessness tribalism brings and which you so aptly represent in your posts today.

            1. You may think I am dumb if it pleases you. I contend that tribalism pervades all societies even sophisticated ones like America. Take the marketing subject of “brand loyalty” as a study of tribalism if you want an example. Packers versus Bears. Ford versus GM. Buyers of German cars versus Japanese cars. Just one example of a more attenuated yet fully operating form of tribalism.

              It is your own instinctual tribalism which impels you to reject tribalism. You consider it mindless but it continues to operate in ways that are less obvious in the past.

              There is a tribalism in Democrat leadership sycophants such as yourself who respond to all the social cues and taboos just as mindlessly as any Micronesian reckoning another jungle inhabitant’s pattern of tattoos.

              https://www.theava.com/archives/89285 this link discusses the operation of Tribalism inside Democratic groupthink.

              I do not deny tribalism. I embrace it. It is a powerful instinct in humans and you err if you believe it is “outdated.”

              Only for very rich people is it “outdated” because their massive resources can buy for them the physical security that we can’t afford. In the meantime we have to live .

              Hence, life, the life of the group, and its physical security, is the very core of tribalism.

              You are the subject of a very covert form of tribalism that denies the more overt forms, as part of its very own tribal strategy.

              The groupthink of that more sinister and sophisticated tribalism grips your whole identity. It is not always bad it is just different and I hope you never have to rely on the more coarse forms of tribalism that people less fortunate than yourself must employ to live.

              1. I could also supply ten articles on supposed Republican tribalism. That’s fine. These parties do operate like tribes too. It is inescapable. Only people still drinking the propaganda Kool Aid of Massa Tom Jeff can’t see the tribalism swirling about them. I reject the platitudes of individualism where-ever i find them. I know this offends many of my fellow Americans, you are in good company

                but in the meantime gear up for that quintessential exercise of American tribalism, the election

                1. In case anybody mistakes the deep inner need of people to belong to a ‘Tribe” then just notice the next time you see some person walking around with tribal tattoos like a Micronesian. Mike Tyson has one on his face but he’s not from Aotearoa.

                  Next time you see some person walking around with tribalistic tattoos you will curse the memory of this conversation.

                  https://www.tattooeasily.com/40-tribal-tattoo-designs-for-arms/#:~:text=Tribal%20tattoos%20are%20very%20fascinating,or%20race%20of%20the%20wearer.

                  The same dynamic operates with people getting Hebrew script tattoos, or Asian glyph tattoos, or biker-racist style tattoos, whatever. They are walking evidence that tribalism is not dead, it just follows new pathways

                  The other day I saw a white guy in the gym with the Chinese word for water on his shoulder. I don’t know many characters but I know that one. The only problem, it was backwards. Like reversed left right along the vertical axis. 水 shui. the k part of the glyph was facing left. I hear this happens a lot with illiterate people aping other cultures they don’t understand.

                  I don’t have a single tattoo nor will I ever so have. My tribal belongings are written on my heart, and some are revealed in the sheepskins on my wall

                  Tribe, you can run from it, but you’ll never get away. it’s like trying to get away from “North.”
                  You’ll just end up in a different place in the tribal matrix.
                  t’s inside of you and all around you. Fools condemn this deep instinct of humanity.
                  Fools and those who manipulate them, that is.

  12. Jonathan Turley wrote, “This complaint would turn that liberating standard into a virtual straight jacket for the media.”

    I stringently disagree.

    In my opinion CNN is no longer considered anything close to journalism, CNN is the equivalent to Pravda, they are totally consumed in an ideological battle that they intend to win at all cost, truth and facts be damned. Something drastic needs to take place to wake up the media and stop their intentionally biased misrepresentations, intentional distortions, partisan spin and blatant lies that they present to the public as truth and facts.

    Yes I think CNN intentionally portrayed Dershowitz as being a lunatic; I personally saw the coverage and I was appalled at the intentional lies! I was so appalled about it I included it in my What Have We Become blog back in February 2020 saying in-part that Democrats (read CNN) “unethically cherry pick a segment of Dershowitz’s statements and present it to the American people completely out of context and misrepresent/lie about what Dershowitz was saying.” Even after Dershowitz appeared on CNN to explain to them that what they were reporting was a “total distortion, not misunderstanding, of my point” Democrats all over the USA were parroting CNN’s intentional lies about Dershowitz’s statements and CNN didn’t stop smearing Dershowitz with the lie. Yes I think CNN and others that were parroting the same smear should be sued for libel and slander, but $300,000,000 might seem extreme but in comparison to what CNN has been doing for the past few years this is a lesson that only a deep dive into their pocket book “might” help to correct.

    Here’s at the core pattern of argumentation of the modern political left in the 21st century…

    If you repeat a lie often enough, people will believe it.

    If you repeat a lie often enough, it becomes the truth.

    If you tell a lie big enough and keep repeating it,
    people will eventually come to believe it.

    If you repeat a lie long enough, it becomes truth.

    If you repeat a lie many times, people are bound to start believing it.

    This the same kind of thing that was put into practice by the master propagandist Paul Joseph Goebbels who was a German Nazi politician and Reich Minister of Propaganda of Nazi Germany from 1933 to 1945.

    I really hope Dershowitz wins this case in court and it sets in motion a seriously needed change across the biased media, but I suspect CNN will eventually try to settle this one out of court like they have other cases and as a result CNN will simply continue their unethical biased support of the left’s march towards totalitarianism.

    Something drastically needs to change how “journalism” has become unethically biased and “journalists” have become unethical political activists, journalism needs to return to its ethical roots.

      1. issacbasonkavich wrote, “If ever there was a practitioner of ‘telling lies often enough to be believed’ it is Trump. Trump is nothing but lies.”

        Your comment falls into the following rationalizations as defined by Unethical Rationalizations and Misconceptions

        1. The Golden Rationalization, or “Everybody does it”

        2. Ethics Estoppel, or “They’re Just as Bad”

        7. The “Tit for Tat” Excuse

        22. The Comparative Virtue Excuse: “There are worse things.”

        Your comment is also a transparent deflection.

  13. I am not a big fan of Dershowitz and even less of a fan of CNN. But our news media, all of them, are completely out of control. I do hope this goes through and I do hope he gets he’s entire $300,000,000. Perhaps then the news media will take seriously their “freedom of press” responsibilities.

  14. Fat chance. Dershowitz should concentrate on his Epstein problem.

    Mean while, thank God you have the always fair and non-biased Fox News to watch, right JT?

    1. He doesn’t have an Epstein problem. Epstein was a client of his and his visits to Epstein’s home were in the company of his wife.

Leave a Reply