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.
Go Alan. Hit em where it hurts!
Dershowitz won’t say a word if the suit goes through.
He prefers television over a courtroom.
He’d prefers $300,000.000.00 over anything else. And I hope he gets it.
I’ll take Wikileaks over CNN, any day.
“Pentagon Papers leaker comes to the defense of Assange”
https://www.washingtonpost.com/world/national-security/pentagon-papers-leaker-comes-to-the-defense-of-assange/2020/09/16/1bc75c92-f849-11ea-85f7-5941188a98cd_story.html
Excerpt:
Pressed repeatedly by James Lewis, a lawyer acting on behalf of the U.S. government, about the consequences of the leaking of unredacted documents, Ellsberg said there was “zero evidence” that the actions of Assange and WikiLeaks had led to anyone being harmed. He also said that Assange took great care not to willfully expose anyone to harm.
While noting the “understandable anxiety” of those revealed to have helped out the U.S., he said any threats had to be “put into context.” He told the court that the wars in Afghanistan and Iraq had made refugees of millions as well as to the death of over 1 million people.
Ellsberg said it is “extremely cynical” for the U.S. government to feign concerns when it had spent much of the past 19 years showing “contempt.”
Ellsberg’s testimony was interrupted by an outburst from Assange in the dock before the Australian was silenced by the judge, Vanessa Baraitser.
Assange’s lawyers say the prosecution is politically motivated and that he won’t receive a fair trial in the United States. They also argue that the conditions he would face in prison would breach his human rights.
-Washington Post
While CNN focused on only one part of Dershowitz’s answer to Cruz’s question, I did not find the full answer providing useful context when I heard it live, read it in Turkey’s article, and read it in the suit.
People still argue with me that the NYT, CNN, and even, cough, MSNBC is straight, unbiased news.
What can you say in the face of that level of denial?
Karen S — TNYT is about as good as it gets.
Benson:
“Karen S — TNYT is about as good as it gets.“
*******************************
Yeah for fabricated yellow journalism. Long live lying reporter Jayson Blair and the 1619 Project canard
Benson – it used to be, absolutely. But that’s long ago now. Surely you would acknowledge the paper’s bias at this point. Have you not read their articles on “white fragility” and other racist screeds against whites? If this was called “black fragility” and otherwise painted all blacks as bad, this wouldn’t be a question.
Would the NYT have stood behind their journalist, Sarah Jeong, if she had written her screeds about blacks?
“Ms Jeong wrote in one tweet from July 2014: “Oh man it’s kind of sick how much joy I get out of being cruel to old white men.”
One online critic posted a selection of Ms Jeong’s other tweets, which contain obscenities.
“Are white people genetically predisposed to burn faster in the sun, thus logically being only fit to live underground like groveling goblins,” she said in December 2014.
The South Korea-born journalist, who was raised in the US, also used the hashtag “#CancelWhitePeople” and complained about “white people marking up the internet with their opinions like dogs pissing on fire hydrants”.”
https://www.bbc.com/news/world-us-canada-45052534
In a new video released Tuesday by Project Veritas, the internet muckraker James O’Keefe continues a series on The New York Times — and this one strips away any pretense that the vaunted “Gray Lady” practices anything close to the journalism of yore.
The 13-minute video shows excerpts from what appears to be an undercover video shot in a bar in London. The main subject: New York Times senior home page editor Des Shoe, who’s based in the city…
“This is what I was trying to say is, like, the last couple years it’s changed for the bad. I think the business model itself is just — there’s so much panic about what to do that, you know, what else is a company supposed to do? That’s the conundrum, is that a business model, in this time, is built on what the readers want.”
Well, then, who are the readers of The Times? Ms. Shoe, occasionally taking sips of a pint of beer, says “some of the readers are liberal,” then pauses before she amends that to, “a lot of them are liberal.”
So, The Times is just giving its customers what they want. “The main objective is to grab subscribers. You do that any way that you can,” Ms. Shoe says.
And bashing Mr. Trump is tried and true.”
https://www.washingtontimes.com/news/2017/oct/17/new-york-times-editor-admits-paper-is-very-very-ve/
That’s as good as it gets, Benson?
Then things ain’t getting as good as they should be!
Note the absence of Fox News in Karen’s statement. TIA said something similar yesterday and JT never attacks Fox. These people don’t care about news, they care about confirmation bias.
Note the absence of Fox News in Karen’s statement. TIA said something similar yesterday and JT never attacks Fox. These people don’t care about news, they care about confirmation bias.
Two of the regulars that meticulously post evidence-based comments and our host, that has built an international reputation as an objective, constitutional scholar. These are the folks you perceive have a confirmation bias, all the while ignoring the Sequoia tree in your own eye. Damn!
😀😁😂🤣😃😄😅😆
BTB – which statement? I have made several.
Fox News was created to counterbalance the unanimous Democrat leaning media at the time. It was impossible to get a conservative viewpoint on the news.
Therefore Fox is a right leaning news organization.
What I enjoy about its round table discussions is that there are always Democrat contributors, like Juan Williams, for example. Such contributors are prepared, and accurately provide Democrat viewpoints, as evidenced when I compare their input with other channels like CNN. I get a fuller picture than when I tune in to the Democrat media. And I enjoy listening to the conservative point of view.
Journalists like Chris Wallace certainly push back on President Trump during interviews. Journalist Jennifer Griffen reported that she interviewed 2 former senior Trump officials who said that Trump called Vietnam a “stupid war” and said people who went were “suckers.” (My own father, whose career service in the military began in the Vietnam war, said politicians interfered in the war, prevented generals from handling it, and caused our boys to get chewed up for nothing. Kind of a common opinion from vets.) These officials also told her he chose not to take the long drive when weather grounded his helicopter. The officials also confirmed that he did not view McCain as a hero. She was repeating what other journalists had repeated, from these sources. That doesn’t mean these sources were truthful, or taken in context, although Trump does have a reputation for extemporaneous rudeness. When Trump was furious, other Fox news journalists stood by her.
I don’t have a problem with op eds, or roundtable discussions. There is a place for that, and it’s nice to see current topics discussed from all sides. When I watch other media, I don’t see much conservative contribution to those discussions. At best, it’s a Never Trumper.
I would like to see more straight news, either in existing media, or even a new media outlet that is 24/7, straight news. Fox does have straight reporting, but I want more of it. The emphasis is on op-ed, and anchors sharing their own opinions. I feel that Fox’s niche is conservative op-ed. That’s valuable in today’s avalanche of Democrat op-ed. We need that platform as an outlet for Republicans to discuss what they stand for. There has been a proliferation of conservative radio, of which of course Rush was the pilgrim and Gold Standard. These trail blazers have lead the way to myriad personalities discussing conservative points of view. I just don’t know how often they reach people who exclusively view Democrat media.
But when I want straight news, I don’t want to have to wait for it to come on in an increasingly tight time slot. I want access to opinions when I want it, or straight news when I want that.
Exactly zero mainstream newspapers fit that bill. All are biased. A reader has a better chance of finding a small local paper that is unbiased, and just reports the facts, than a nationally distributed one.
And the legal team of Dershowitz & Turley will go down in the history books together as lawyers for this impeached POTUS. Sad, just sad.
And the government in Nazi Germany impeached the Jews.
Very sad!
I’m thrilled he’s suing CNN. The last thing the Dersh is, is a fool. I’m certain he understands the law here as well as anyone else and can, and will, give a fine account of the basis of his suit and his reasons for bringing it. If it makes CNN sweat both as to the worst possible outcome, which every lawyer advising it has to consider, and as to the publicity along the way, an exposee of its awful biased “news coverage”, quotation marks fully intended, amounting to yellow journalism, then the suit will be a boon,
FWIW, I thought Dersh’s argument at the Impeachment trial was spectacular and ought go down as one of the great public presentations in American history.
Btw, the difference between requiring anchoring serious criminality for impeachment or not requiring it isn’t a zero sum issue.
There are profound policy arguments for both, the former,’s including the manifest danger of turning this gravest of constitutional remedies into simply another political tactic by which to short circuit the peoples’ choice.
Examples?
This last impeachment attempt and arguably the impeachment of Clinton, where at least there was criminality but strongly arguably not serious enough to warrant impeachment.
I find it interesting that the argument for not requiring anchoring criminality usually resorts to bizarre examples like the president sitting in a van all day listening to heavy metal or simply spending most of his time in China or Russia or wherever else.
They’re fanciful, pure products of wild imaginings while the devolution of impeachment from a grave remedy to just another arrow in the political quiver is a growing fact.
A great point made by Dershowitz in his address to the Senate is that “abuse of power” oughtn’t be understood as a ground of impeachment but rather the conclusion one arrives at after considering and assessing the criminality involved.
That Itzik Basman, me, who posted the just above note.
Hope Dershowitz wins his case….He’ll need the money to fight allegations of his association with Jeffrey Epstein. Oh wait a minute all the left’s lawyers will be arguing the outcome of the election.
The point of the law suite is not to actually win, but to point out the ridiculously slanted CNN coverage. Mission accomplished. I do appreciate proffesor Turley’s tounge in cheek criticism of the suite.
You have to be an idiot, or more likely a propagandist to argue that the president’s extorting a foreign head of state to announce – we learned later that the announcement, not an actual investigation was all Trump cared about – an investigation into the president’s main political rival using funds appropriated by Congress as leverage is an OK use of the powers of his office justified by his desire to be elected.
The mental pygmies this argument appeals to are in full display here. They will be very disappointed when this ludicrous suit gets summarily thrown out of court.
Dersh wins either way. If it makes it past summary judgment then he has a case to try.
if it doesnt then he can attack Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) ” and its progeny” on appeal– what we call “a good faith effort to change the law”
CNN has become the monster Sullivan was always going to produce. CNN may want to settle. Because if they lose and then appeal, they may lose Sullivan protections as well.
One of the main duties of any lawyer is to make their arguments clear to the reader/listener. If an argument is misinterpreted – as Dershowitz claims (and Turley seems to agree) it was here – that is largely due to the lawyer not making the argument clear enough.
I mean, if a lawyer were arguing to SCOTUS and the assembled justices misinterpret your argument it is likely because you did not make the argument well in the first place. Here, if so many listeners heard what sounded to them like a stupid argument; perhaps the lawyer should have made a different argument.
The fact of the matter is that what Trump did was impeachable, and was clearly for corrupt motives. The Senate was going to acquit him merely because they are Trump sycophants and regardless of any arguments Turley or Dershowitz were going to make. They did not need to sully their reputations by presenting dubious arguments in public; but that is what gets you invited on FoxNews week after week.
Indeed Hugh, and the fatuousness of Dershowitz’s argument on the floor of the Senate was as it has been represented – an argument that excuses illicit to illegal acts if dome to seek re-election.
As to invitations to get air time, no doubt JT does not get them to CNN and fuels his butt hurt vendetta. He’s got an anti-CNN column at least once every 2 weeks while having no problem with the equally – at least – biased coverage on Fox.
Dershowitz nor Turley “sullied their reputations” they were on the winning side of an impeachment and they iced their places in history. If they hadn’t done so already.
Trump WAS impeached, so how is that on the winning side. You’re right about Dershowitz and Turley they WILL be on the wrong side of history.
And the government in Nazi Germany impeached the Jews.
Fishy:
Trump wins an impeachment trial against charges based on pure hearsay and his defenders are “on the wrong side of history.” What a maroon you are as Bugs would say. Losers whine, winners win.
Trump was impeached because he won an election.
Dershowitz makes a rather preposterous argument equating Lincoln making it so soldiers can vote to be the same corrupt thing that Trump did here – holding American foreign military aid for Ukraine hostage until the President of Ukraine announced a bogus investigation into his political opponent’s son.
Promoting voting by soldiers is a good thing and we do not need to look at the motives to determine if it is impeachable.
Trump was doing an inherently bad thing which is why we are looking at the motives here. (And he motives were bad).
And, of course, turnout in the 1788 presidential election was 11.6% by design.
Most common people, including “soldiers,” were not intended or entitled to vote by the American Founders.
As in all groups, leaders lead.
________________________
Them Injuns had one Chief!
And he wasn’t the smartest, he was the “leaderest!”
_________________________________________
“The people are nothing but a great beast…
I have learned to hold popular opinion of no value.”
– Alexander Hamilton
_________________
“The true reason (says Blackstone) of requiring any qualification, with regard to property in voters, is to exclude such persons, as are in so mean a situation, that they are esteemed to have no will of their own.”
“If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote… But since that can hardly be expected, in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications, whereby, some who are suspected to have no will of their own, are excluded from voting; in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.”
– Alexander Hamilton, The Farmer Refuted, 1775
Wow, Turley complains about CNN’s bias and completely ignores Fox News own problems with bias. If Dershowitz thinks he can sue I’m sure there are plenty of people who can present a case against Fox News for the same reason.
Dershowitz is a victim of his own making. CNN had nothing to do with his problems. It was Dershowitz who opened his mouth. CNN just reported what he says just as Fox News does with others.
Wow, Turley complains about CNN’s bias and completely ignores Fox News own problems with bias.
He ignores it because it doesn’t exist. The dispositions of those in the Fox News operation are quite variegated.
Hilarious
Let’s hear a “hot mic” moment from self proclaimed leftist and Democrat primary challenger about how Fox is nicer
https://www.realclearpolitics.com/video/2019/09/12/marianne_williamson_on_hot_mic_what_does_it_say_that_fox_news_is_nicer_to_me_than_the_lefties_are.html