Former President Donald Trump is suing CNN in a $475 million defamation lawsuit, according to a complaint filed in federal court in the Southern District of Florida on Monday. The lawsuit faces significant challenges under the governing precedent for public figures. For counsel, those challenges likely seem steeper in a week when Trump unleashed reckless and offensive attacks on Senate Republican leader Mitch McConnell and his wife former Transportation Secretary Elaine Chao as well as journalist, Maggie Haberman. It is not exactly the context that counsel would want when seeking to hold CNN liable for defamatory comments in a difficult legal action.
Even without these inflammatory and personal attacks, Trump faces a very steep hill to climb in a defamation case. As a public figure, he is subject to the standard created in New York Times v. Sullivan, where the Supreme Court held that the first amendment requires breathing space for free speech in criticizing public officials. Accordingly, it established an “actual malice” standard requiring a showing that a false statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” That standard was later extended to not just public officials but public figures.
As president, Trump denounced the standard and called for its removal — a move that I criticized at the time. While I have questioned the need for a public figure standard (as opposed to a public official standard), I have noted that Trump has been a beneficiary of this rule — as this week’s personal attacks demonstrates.
Trump has brought a series of rejected defamation actions, including against CNN.
Here is the nut of the complaint:
“One of the most pervasive associations between the plaintiff and Hitler that CNN has employed is its use of the term the ‘Big Lie’ in relation to the plaintiff’s stated concerns about the integrity of the election process for the 2020 presidential election,” read the court filing. “In its campaign of dissuasion, CNN has branded the plaintiff as one who subscribes to the notion of the ‘Big Lie’… a direct reference to a tactic employed by Adolf Hitler and appearing in Hitler’s Mein Kampf.”
The complaint added:
CNN’s campaign of dissuasion in the form of libel and slander against the Plaintiff has only escalated in recent months as CNN fears the Plaintiff will run for president in 2024. As a part of its concerted effort to tilt the political balance to the Left, CNN has tried to taint the Plaintiff with a series of ever-more scandalous, false, and defamatory labels of “racist,” “Russian lackey,” “insurrectionist,” and ultimately “Hitler.”
There is no question that CNN has aired unrelenting attacks on Trump since his inauguration. Moreover, such statements are not entirely made on the commentary side of the network but with reporters and hosts covering stories. Notably, Fox is being sued for defamation over coverage of Dominion voting machines.
Many of these characterizations may be attacked as unprofessional but likely fall short of the actual malice standard. In addition, many are likely to be treated as opinion. Aspects of the filing are reminiscent of Wilkow v. Forbes, Inc., 241 F.3d 552 (7th Cir. 2001) where a journalist with Forbes was sued for harsh characterizations of a lawyer and his practice. Judge Frank Easterbrook wrote that “although the article drips with disapproval of Wilkow’s (and the judges’) conduct, an author’s opinion about business ethics isn’t defamatory under Illinois law.”
It is possible to prevail if the allegation is factual and specific and false.
The public figure standard was established in Curtis Publishing v. Butts (1967). The case involved a March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul “Bear” Bryant to fix a 1962 football game in Alabama’s favor. In a 5-4 decision, Chief Justice Warren wrote a concurrence that extended the ruling in New York Times v. Sullivan on public officials to public figures. He found the same reasons for applying the higher standard to public officials as present in cases involving public figures:
[I]t is plain that, although they are not subject to the restraints of the political process, “public figures,” like “public officials,” often play an influential role in ordering society. And surely, as a class, these “public figures” have as ready access as “public officials” to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of “public officials.” The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.
The Court ruled in favor of Butts, and The Saturday Evening Post was ordered to pay $3.06 million (later reduced to $460,000) to Butts in damages. That case, however, involved a specific allegation of a fixed game, not hyperbolic or partisan rhetoric.
Notably, Curtis was decided joined with Associated Press v. Walker, involving former Gen. Edwin Walker who opposed desegregation. In one article, the Associated Press claimed that Walker had “led a charge of students against federal marshals” and “commanded” those opposing the admission of James Meredith at the University of Mississippi. He prevailed at trial. However, the Court found that AP was not liable under the actual malice standard, even as a matter of reckless disregard. Justice John Marshall Harlan II wrote for himself and three other justices (and joined by concurring justices) in noting that Walker was a “public figure,” given the fact that “his personal activity amount[ed] to a thrusting of his personality into the ‘vortex’ of an important public controversy.” Harlan also noted that Walker “commanded sufficient access to the means of counterargument to be able to expose through discussion the falsehood and fallacies of the defamatory statements.” Liability, Harlan concluded, should only follow “a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”
These cases explain why I am skeptical that former President Trump can successfully maintain this action. Even the specific criminal allegation of being an “insurrectionist” is a matter of opinion. It is doubtful that a court will see such over-heated rhetoric as meeting the high standard under the actual malice test.
The case is Trump v. CNN, No. 0:22-cv-61842, in the United States District Court for the Southern District of Florida.
Why does the author keep using phrases like “over-heated rhetoric” instead of a more accurate phrase like “demonstrable truth.”
It was difficult to drain the DC swamp when you’re up to your ass in Left Wing Media alligators.
The SC “established an ‘actual malice’ standard requiring a showing that a false statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ That standard was later extended to not just public officials but public figures.”
lady Justice is blindfolded for a reason. The law applies equally to all. You do not receive more legal protection, or *less*, just because of your station in life. She is not peeking under her blindfold to see if you are a “public figure.” And if you are, then you don’t receive the same legal protections as do others.
The SC got this one wrong.
Does Law Draw a Line between “Propaganda” and Opinion”?
1. Professor Turley will be on spot with his assumption that this lawsuit will go nowhere.
2. After “Project Veritas” exposes an CNN’s anti Trump bias in a four pieces story in 10/19 [1] his lawyer Charles Harder wrote a letter to Jeff Zucker the he will be sued because of “unfair, unfounded, unethical and unlawful attacks.”
3. On 7/21/22 lawyer James Trusty wrote in a 26 pages retraction letter (+ 34 exhibits), “CNN must publish a full and fair correction, apology, or retraction, in the same editions or corresponding issues of the website publication in which the aforementioned articles, transcripts, or broadcasts appeared and in as conspicuous a place and type as said original article, transcript or broadcast within ten (10) days from the date of service of this notice.” [2]
4. Without any reaction, lawsuit followed [3]
5. Prior to 2020 Presidential Election, CNN brought several medical people on air about President Trump “health issues”: He was neurologically damaged, losing it. is unfit for office: I call that propaganda,
[1] In 4/21 “Project Veritas” published a similar story.
[2] https://cdn.nucleusfiles.com/ae/ae734685-32d7-4d51-a380-25c76e1787e5/retraction-letter-with-exhibits.pdf?utm_medium=email_hf&utm_source=ncl__&utm_campaign=20220727___sa&utm_content=__4518&_nlid=DeQr7wp9Qf&_nhids=q58dTV6q
[3] https://justthenews.com/sites/default/files/2022-10/gov.uscourts.flsd_.621239.1.0.pdf
His is differnt. It’s basically the govt skin trump. The only standing that dominion has….is as the govt. ‘ domo ions shoes are only as big as the government. ” no bigger! And costs will police jurisdicion. I don’t see how as an agent of he govt he said tiger bigger than the gov! As a mere contractor!. If dominion is bigger than our gov ….oh a war b our admiral and more. A war Kirb would fight now…..like an admiral with a brain🌝 faciss🌅🌅
lol we need to revolt! I think we own the harvest and dominion does not!
In the Project Veritas recordings employees were recorded saying Zucker issued memos everyday about what they were and were not supposed to say about Trump. To the extent that one expressed frustration that they had abandoned journalism alogether and were exclusively to pursue and report anything negative about Trump, whether proven true or not. Would Trump’s lawyers be allowed to see these memos and subpoena those employees in order to demonstrate a hidden (if badly) false narrative driven by the CEO for the express purpose of attacking and damaging Trump?
The media has the right to lie and makeup whatever story it wants and give America a 20 trillion dollar haircut and no one can stop them.
It that a great deal, or what?
Oh how so I hope this would go to trial. Lawyers introducing reams of evidence that Trump is everything the NYT said he is. And then Trump on the stand would be a clown show. He would perjure himself in the first minute and it would get worse from there.
I hope so also, because he has evidence that the election was stolen and will bring it to court. CNN is in a tough spot, let the Trump lawyers prove in open court that the election was stolen or reach an agreement. If they pay then Trump will move to the next media giant and start again.
Win win win.
Real President Donald J. Trump should sue Leticia “Mike Nifong” James and the State of New York in the amount of $500 million for malicious prosecution and defamation.
Real President Donald J. Trump should sue the DOJ, FBI, CIA, and the participants in the Obama Coup D’etat in America in the amount of $5 billion for conspiracy, malicious prosecution, harassment, defamation et al. including:
Kevin Clinesmith, Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann,
James Comey, Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic, Sally Yates,
James Baker, Bruce Ohr, Nellie Ohr, Priestap, Kortan, Campbell, Sir Richard Dearlove,
Christopher Steele, Simpson, Joseph Mifsud, Alexander Downer, Stefan “The Walrus” Halper,
Azra Turk, Kerry, Hillary, Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power,
Lynch, Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama,
Joe Biden, James E. Boasberg, Emmet Sullivan, Gen. Milley, George Soros, John McCain,
Marc Elias, Igor Danchenko, Fiona Hill, Charles H. Dolan, Jake Sullivan, Strobe Talbot,
Cody Shear, Victoria Nuland, Ray “Red Hat” Epps, Don Berlin, Kathy Ruemmler, Rodney Joffe,
Paul Vixie, L. Jean Camp, Andrew Whitney et al.
Or al! Hem ….with a Florida address. St Albright said there is a special place in hel!!…..who don’t for hillar. Pushes me to reali! I should get i….Pakistan is about to nuke dc. That’s how far we are. We got is now saving our asz. Tapping out dc. One one hand it’s late is on he other on better lusen! We are wzrned.
Of all of them, the fact that CNN and others were constantly maliciously lying about Trump being a Russian lackey would seem to me to be the most likely to stick.
Isn’t truth a defense? Kidding. But really. This is a loser.
(OT)
Trump is asking the Supreme Court to reverse the 11th Circuit ruling granting DOJ access to the classified docs recovered from Mar-a-Lago.
copy here:
https://www.politico.com/f/?id=00000183-a484-d513-a19b-bfd40c910000
Law prof. Steve Vladeck’s helpful discussion of the motion:
https://twitter.com/steve_vladeck/status/1577407863655264256
Obama could win a defamation lawsuit faster than Trump.
Remember when Obama was defamed, using guilt-by-association, because his Christian pastor was viewed as radical? When that didn’t stick to the wall, Obama was then called a Muslim. When that slander didn’t stick to the wall, Obama was called a Kenyan Witch Doctor. At one point he was called a Gangster.
In 2014, the U.S. Justice Department published the “Ferguson Report” about the systematic racism in the entire city government of Ferguson, Missouri that led to the death of Straight A student Michael Brown for the crime of Jay-walking.
The DOJ Ferguson Report found defamatory photos and caricatures of the local government officials, depicting Barack and Michele Obama as monkeys and primates. A local government official defaming a standing President of the United States – using racist graphics and text (libel, a type of defamation). The DOJ then took over the local government until they completed necessary reforms to correct their institutional racism.
Ferguson was founded because white racists in St. Louis at the time essentially pushed out African-Americans into the surrounding suburbs, majority black populations controlled by mostly white officials and mostly white police officers.
Maybe Obama should file a defamation lawsuit, he has far stronger evidence than Trump does?
Ashcroft. Barck Hussain Obama isn’t a muslim name? He was raised a muslim, he is a muslim. I will say he is a liar pretending to be Christian simply for political reasons. His ranting Jerimiah Wright is a radical antiAmerica. I don’t have a care whether you agree or not. But more info will be forthcoming on Hussain soon. Any true professing Christian will not be patronizing male bathhouses and calling their spouse (wife) Michael. If Soreto had a case of defamation he would be pressing it. I thought you were a evolutionary guy and believe mankind sprang from monkeys?
PORCH MONKEY DEFENSE MAYBE IN KENYA !!!!!!!!!!!!!!!!!!!!!!
The point is not the winning of the case. The point is to expose CNN for what they are. Who else in this nation has the power and the money to point out the CNN propaganda machine. You go Donald. The nation wins either way. Thank you for contributing part of your wealth to assure that the people of the nation be allowed to hear the truth.
He isn’t contributing his wealth.
He’s trying to fund-raise off of it.
There is no “truth” in the suit. It’s frivolous suit that in all likelihood will be dismissed by the court as baseless. One cannot sue for defamation simply because people express opinions you object to. Defamation requires false statements of fact.
Joe Biden’s fund raising is at the publics expense except when he is pocketing the money or distributing it to his Crime Syndicate.
Trump is using private funds, likely his own.
One day you will learn the difference between pubic and private. Whether or not he wins is a different story, but that is his choice, not yours.
..this is a long-time coming.. I did not vote for Trump, but shortly after he began his Presidency I noticed that CNN had a penchant for taking his words out of context to twist their meanings into totally different thoughts, etc., e.g., making him sound like a flaming racist and then calling him one. (which is slander..) i did the research. I found the speeches CNN spliced and diced. So regardless of what you think of Trump.. it’s about time he called CNN to task. This is a service to all to stop the Media from this practice..
Prof Turley, thank you for yet another thoughtful perspective relative issues of import and controversy.
You wrote “Harlan also noted that Walker “commanded sufficient access to the means of counterargument to be able to expose through discussion the falsehood and fallacies of the defamatory statements”. I find that this point buttresses a counter argument or at least begs a question–how does that occur for Mr. Trump in the context of being de-platformed, censored and erased by Twitter and Facebook?
Exactly how do those “erased and so muzzled” argue or explain rationales when “voice” itself is denied to said individual–particularly with proportional reach and gravitas to stand against those who have effectively denied the offended party same?
For the insults be greater when only one party’s shrill voice comprise the avalanche and no voice can be raised to arrest the vitriol.
I saw this as Trump trying to use this as a test case against Sullivan.
Justice Thomas has openly suggested his interest in hearing one in front of the court.
Trump is Trump and I hope his lawyers get a huge retainer up front.
He is sometimes his own worst enemy.
-G
Public figures have not ben given a special carve out in the Constitution. With that carve out should come penalties for offending it. For example, we can all own guns, but we cannot run guns to foment revolution.
Turkey says Trump’s “recent” attacks are in the same space as CNN’s attacks on him. Trump’s attacks don’t come w lawyer fees. Harm.
CNN should be sued. No one can say with a straight face that Jim Acosta’s constant antagonistic approach had anything to do with “journalism”. Srsly. Why would someone like him even be given a platform? If this lawsuit doesn’t fly, their continued drop in ratings will surely be the death of this once prestigious network and creator of 24/7 news. It’s the same for the rest of the DNC state run media. No journalism, no ethics. It’s all political points, “what can I do to make the other side look bad and help my candidates?”. Such is the pathetic state of news media in America today.