President Donald Trump on Friday announced that he plans to file a defamation lawsuit against the BBC for up to $5 billion over a misleading edit of his January 6, 2021, speech for the investigative documentary series Panorama. While the BBC has apologized, pulled the program, and announced the resignation of two top executives, President Trump is demanding compensation. The lawsuit, however, would be challenging if filed in the United States. (For full disclosure, I previously served as legal analyst for the BBC).
Trump told reporters that “We’ll sue them for anywhere between a billion and $5 billion probably sometime next week.”
Trump previously secured settlements from American networks, including CBS, for $16 million. Notably, some of us expressed skepticism over the legal chances of the CBS lawsuit, but the network elected to settle rather than face prolonged litigation (particularly at a sensitive time for the company, given a planned merger).
As the BBC itself has acknowledged, the editing of the speech was clearly misleading. The editors joined statements separated by almost an hour while omitting statements where the President called on his supporters to march on the Capitol “peacefully” and said that the purpose was to “cheer on” their allies in Congress.
It is also true that this is a common misconstruction. I previously wrote about how the J6 Committee in Congress routinely edited out Trump’s call to protest “peacefully” despite objections that it was intentionally omitting a material element to his speech. As with the BBC, the language did not fit what Nancy Pelosi called “the narrative” of the Committee, so it was deleted.
Trump is clearly using these lawsuits to push back on such unfair framing of the speech. Many media organizations have omitted or downplayed Trump’s words about a peaceful protest. However, I disagree with friends and colleagues who have suggested that this is an easy case to prove in a U.S. court.
Ironically, the best place to bring this action would have been the United Kingdom, which has laws that favor plaintiffs in such actions. The United States is far more protective of free speech and free press values. Nevertheless, there are barriers to bringing an action at this time in the UK.
The United States has more robust protections for media organizations, particularly in statements concerning public officials or public figures.
The court correctly viewed civil liability as creating a chilling effect on the free press, either by draining publications of funds or inducing a type of self-censorship. Imposing a high standard for proof of defamation, Brennan sought to give the free press “breathing space” to carry out its key function in our system.
The case established a higher standard of proof for defamation than simple negligence for public officials. The court believed that public officials have ample means to rebut false statements, but that it’s essential for democracy for voters and reporters to be able to challenge government officials. To achieve that breathing space, the court required public officials to prove “actual malice,” where the defendant had actual knowledge of the falsity of a statement or showed reckless disregard for whether it was true or false.
For public officials (and later public figures) mere negligence is not enough to prove defamation (as it would be in a case where an ordinary person was defamed).
On one level, it is hard to see how an editor did not show reckless disregard for the truth in stitching together these statements, separated by almost an hour, while cutting out material in the middle that indicated a peaceful intent. It showed, at a minimum, appalling judgment and a lack of interest in offering a balanced “grab” from the speech.
However, was it “actual malice” as a legal matter? Keep in mind that you have to convince a jury that there was no innocent or merely negligent basis for the edit. The BBC has already effectively admitted that it was negligent, but insists that it was not intentional.
There is also an element of opinion in these edits. An editor is trying to capture what the program believes is the gist of the message. Even with the President’s statement about going peacefully to the Capitol to cheer on allies, many do not agree that that was the thrust or clear message from his speech. Congress ultimately impeached the President on the basis of the speech (“Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States…”). Congress also regularly omitted the exculpatory language, and many members insisted that those statements were merely “asides” and were not material to his overall message. The BBC can cite the impeachment and the views of many commentators to support the editing choice as an exercise of editorial discretion.
While I criticized the speech on air as it was being given (due to legal claims made about the authority of then-Vice President Pence to refuse to certify the election), I have long maintained that the speech did not constitute criminal incitement and was, in fact, protected speech under cases such as Brandenburg v. Ohio. I opposed the impeachment based on the speech. Notably, Trump was never charged with criminal incitement despite widespread claims from experts that it did so meet that standard.
This brings us back to the BBC case. The network will be able to enjoy the greater “breathing space” afforded in the United States as opposed to the United Kingdom if this is filed, as expected, in Florida or some other state. It will be able to claim that it used clips that reflected what it viewed as the thrust of the speech. The segment was exploring the January 6th riot and the BBC used those comments that it considered most inflammatory on that day. It should not have done so, but jurors or the court could view it as an exercise of journalistic discretion or opinion.
In Wilkow v. Forbes, Inc., 241 F.3d 552 (7th Cir. 2001), opinion prevailed as a defense. In that case, 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.” Notably, the article was not on an opinion page, but the court found that the journalist’s opinion was obvious from the tenor of the column.
It is an argument that could easily persuade some jurors and could also raise a threshold constitutional concern for the court. Again, none of this means that the BBC was in the right. It was not and has admitted to the violation of journalistic standards. However, the question is how a defamation lawsuit would likely play out in a U.S. courtroom. I have my doubts about securing a jury verdict on this evidence.
In the end, any settlement is likely to be driven more by political rather than legal concerns. The question is whether the BBC wants to have a prolonged case on an embarrassing segment. However, the BBC is different from the American networks. It is a publicly supported network, and these are British tax dollars. Moreover, it is a cherished institution in the UK. A demand for compensation may be a bridge too far for our British cousins.