By Settling Trump's Laughable Lawsuit Against CBS, Paramount Strikes a Blow at Freedom of the Press
The company's surrender to Trump's extortion vindicates his strategy of using frivolous litigation and his presidential powers to punish constitutionally protected speech.
Paramount, which owns CBS, has agreed to settle a laughable lawsuit in which President Donald Trump depicted the editing of a 60 Minutes interview with Kamala Harris as a form of consumer fraud that supposedly had inflicted damages "reasonably believed to be no less than" $20 billion. Compared to that risible claim, the amount that Paramount has agreed to pay—$16 million for legal expenses and a contribution to Trump's presidential library—is pretty puny. It is also less than the $25 million that Trump reportedly demanded during negotiations with Paramount. It is nevertheless $16 million more than Trump deserved based on claims that CBS had accurately described as "completely without merit."
This humiliating settlement starkly illustrates how the powers of the presidency can be abused to punish news outlets for constitutionally protected speech. It does not bode well for freedom of the press under a president who has no compunction about weaponizing the government against journalists who irk him.
"A cold wind just blew through every newsroom this morning," Robert Corne-Revere, chief counsel at the Foundation for Individual Rights and Expression, said in an emailed statement. "Paramount may have closed this case, but it opened the door to the idea that the government should be the media's editor-in-chief."
Although CBS initially said it would "vigorously defend" against Trump's lawsuit, Shari Redstone, Paramount's controlling shareholder, decided that the company's business interests would be better served by throwing in the towel. Redstone, The New York Times notes, "has said she wants to avoid a protracted legal war with the president that could cost hundreds of millions of dollars and jeopardize other divisions that have business with the government."
Another possible consideration was Paramount's pending merger with Skydance Media, which is subject to approval by the Federal Communications Commission (FCC) because it entails the transfer of broadcast licenses. "Some executives at the company viewed the president's lawsuit as a potential hurdle" to that multibillion-dollar deal, the Times reports, although both Paramount and Brendan Carr, the FCC's Trump-appointed chairman, have insisted that the president's phony grievance against CBS "was not linked to the F.C.C.'s review of the company's merger with Skydance." That is hard to believe, especially since Carr decided to reopen a "broadcast news distortion" investigation of CBS based on the same pre-election interview that Trump claimed had cost him more than his net worth.
Trump's beef with CBS News focused on Harris' answer to a question about Israeli Prime Minister Benjamin Netanyahu. When 60 Minutes correspondent Bill Whitaker suggested that Netanyahu was "not listening" to the Biden administration's concerns about the war in Gaza and had "rebuffed just about all of your administration's entreaties," here is how Harris responded:
Well, Bill, the work that we have done has resulted in a number of movements in that region by Israel that were very much prompted by, or a result of many things, including our advocacy for what needs to happen in the region. And we're not going to stop doing that. We are not going to stop pursuing what is necessary for the United States to be clear about where we stand on the need for this war to end.
On October 6, Face the Nation promoted the Harris interview with a clip that included the first sentence. The interview as aired on 60 Minutes the following day used the last sentence. In other words, the latter show's producers were telling the truth when they said they had used the "same question" and the "same answer" but "a different portion of the response." By contrast, Trump was flat-out lying when he claimed CBS "100% removed Kamala's horrible election changing answers to questions" and "replaced them with completely different, and far better, answers, taken from another part of the interview."
Harris did not come across as especially forthright, articulate, or intelligent in either version, although the one that 60 Minutes showed was a bit more concise. But as Trump saw it, the decision to use the last sentence instead of the first one amounted to "Election Interference." It was an "UNPRECEDENTED SCANDAL" and "a giant Fake News Scam" that was "totally illegal." By editing the interview to make Harris "look better," he said, CBS had committed an offense so egregious that the FCC should "TAKE AWAY THE CBS LICENSE"—by which he presumably meant the broadcast licenses held by CBS-owned stations.
CBS still has its licenses (for now). But in a lawsuit that Trump filed on October 31 in the U.S. District Court for the Northern District of Texas, he argued that making Harris seem slightly more cogent was "totally illegal" because it violated that state's Deceptive Trade Practices Act (DTPA). That violation, he averred, had cost him "at least" $10 billion in Texas alone. A footnote claimed that "CBS's distortion of the 60 Minutes Interview damaged President Trump's fundraising and support values by several billions of dollars, particularly in Texas"—a completely unsupported assertion that, even if taken at face value, would not come close to justifying Trump's estimate of damages within Texas.
In case that was not ridiculous enough, an amended complaint that Trump filed on February 7, a few weeks after taking office, doubled his estimate of the damages inflicted by CBS. The revised complaint added a claim under Section 43(a)(1)(B) of the federal Lanham Act, which applies when someone "misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities." By violating that provision, Trump asserted, CBS had cost him an amount "reasonably believed to be no less than $10,000,000,000."
This time, Trump's lawyers did not even bother adding a footnote. Nor did they explain why his estimate of Lanham Act damages throughout the United States was exactly the same as his estimate of DTPA damages within Texas—a weird coincidence that made little sense even if you ignored the comical magnitude of the numbers. And those flagrantly fictional figures were by no means the only absurd aspect of Trump's case.
The DTPA prohibits "false, misleading, or deceptive acts or practices in the conduct of any trade or commerce." As relevant here, the DTPA defines "trade or commerce" as "the advertising, offering for sale, sale, lease, or distribution of any good or service," including "any trade or commerce directly or indirectly affecting the people of this state." In other words, the statute is aimed at misrepresentations in connection with the promotion or sale of goods or services.
When it edited the Harris interview, 60 Minutes was not advertising or selling anything. It was practicing journalism—poorly, in Trump's view, but in any case making the sort of editorial decisions that news outlets routinely make. Those decisions are indisputably protected by the First Amendment except in specific, narrow circumstances such as defamation. Whatever you make of Trump's objections to the Harris interview, they plainly do not support a claim for damages under the DTPA.
Trump claimed his lawsuit was authorized by Section 17.50 of the DTPA, which says "a consumer may maintain an action" when he suffers "economic damages" or "mental anguish" as a result of false, misleading, or deceptive statements that he "relied on" to his "detriment." A consumer also can sue based on "breach of an express or implied warranty" or "any unconscionable action." The law defines that last phrase as "an act or practice which, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree."
Trump's lawsuit said he was "a 'consumer' within the meaning of the DTPA, since he is an individual who sought and received CBS's broadcast services." But the statute defines "consumer" as someone who "seeks or acquires by purchase or lease, any goods or services" (emphasis added). Trump did not purchase or lease anything from CBS.
While Trump may be a "consumer" of 60 Minutes in the sense that he watches the show, he is not a consumer who bought goods or services from CBS, let alone one who bought goods or services based on "false, misleading, or deceptive acts or practices." Since there was no transaction, Trump likewise could not have suffered damages by buying something based on "an express or implied warranty" or because he lacked the "knowledge, ability, experience, or capacity" to assess the merits of the purchase.
Trump's lawsuit noted that the DTPA covers practices that "caus[e] confusion or misunderstanding" regarding "the source, sponsorship, approval, or certification of goods or services" or regarding "affiliation, connection, or association with, or certification, by another." He said CBS confused "millions of Americans, and in particular residents of Texas," because it was "impossible for even the most discerning viewers to determine whether the 60 Minutes interview was independent journalism or de facto advertising for the Kamala Campaign." He said viewers also would have been confused about "the Interview's 'certification by' CBS given its legal obligation to broadcast news in a non-distortive manner."
The lawsuit added that "CBS's misconduct was unconscionable because it amounts to a brazen attempt to interfere in the 2024 U.S. Presidential Election." That understanding of "unconscionable," invoking supposed election interference, has nothing to do with the way the term is used in the statute, where it refers to a situation in which a business cheats a consumer by taking advantage of his ignorance in a "grossly unfair" way.
None of this makes any sense in the context of the DTPA, because none of it is grounded in a commercial relationship between Trump and CBS. Trump was simply dressing up his criticism of news coverage as a consumer fraud complaint without any evidence that CBS engaged in the deceptive trade practices that the law covers. This is the same strategy he later used in his lawsuit against The Des Moines Register, which offended him by publishing a poll that inaccurately predicted a Harris victory in Iowa. If misleading journalism counted as actionable consumer fraud, news outlets would have to constantly worry about potentially ruinous litigation whenever their work might be characterized that way, which is almost always the case.
Trump's Lanham Act claim was equally groundless. That law, his amended complaint said, "was designed to protect against duplicitous conduct by industry participants (such as Defendants) that results in unfair competition." The complaint averred that Trump was competing with CBS because he "creates and produces digital media content about news, politics, pop culture, and public affairs, some of it for commercial and entertainment purposes, and much of which he disseminates in his personal capacity and through his media brands including Truth Social," his social media platform. It added that CBS had unfairly competed with Trump by editing and promoting the Harris interview in a way that gave viewers a false impression of its content.
As CBS noted, Trump failed to "plausibly allege even the foundation of the claim: that CBS' news programming is 'commercial advertising or promotion.'" It added that the Lanham Act and the DTPA "do not and could not, consistent with the First Amendment, apply to editorial speech like the broadcasts at issue" in this case: "If the First Amendment means anything, it means that public officials like Plaintiffs cannot hold news organizations like CBS liable for the simple exercise of editorial judgment."
Yet that is what Trump tried to do. Did he succeed? Paramount did not concede that CBS News had committed any journalistic sins, let alone that it had violated patently inapplicable state and federal laws. Nor did Paramount issue any sort of apology. But according to the Times, the company did agree to "release written transcripts of future '60 Minutes' interviews with presidential candidates."
While that concession in itself may seem unobjectionable or even welcome, a payment of any sort vindicates Trump's strategy of combining frivolous litigation with implicit threats of adverse official action to intimidate news organizations. Paramount is essentially paying Trump protection money—a characterization plausible enough that, according to the Times, "the prospect of being accused of bribery, and perhaps facing legal action because of it, had vexed Paramount's directors." And even before the settlement, the Times reports, Paramount and CBS executives had begun applying "more scrutiny than usual" to 60 Minutes segments that "could be construed as critical of the Trump administration."
Trump's lawyers presented his extortion—which was motivated, like many things Trump does, by a petty personal peeve—as a victory for all of us. "With this record settlement," they crowed, "President Donald J. Trump delivers another win for the American people as he, once again, holds the Fake News media accountable for their wrongdoing and deceit. CBS and Paramount Global realized the strength of this historic case and had no choice but to settle. President Trump will always ensure that no one gets away with lying to the American People as he continues on his singular mission to Make America Great Again."
You can judge for yourself whether the editing of the Harris interview qualified as "lying to the American People." But there is no question that it was protected by the First Amendment, which does not include an exception for journalism that strikes the president as misleading, biased, or unfair. Trump is avowedly determined to use any tools at his disposal to make sure "no one gets away" with covering the news in a way that offends him, which does not seem like a "win" for anyone who values the freedoms guaranteed by the First Amendment.
