Free Speech

Trump v. CNN Libel Suit Dismissed for Now

The court finds that the Trump campaign didn't offer enough facts suggesting that CNN knew the statement was false (or was likely false); the campaign is allowed to file an amended complaint if it can make more specific allegations.

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From today's decision by Judge Michael L. Brown in Donald J. Trump for President, Inc. v. CNN Broadcasting, Inc.:

On June 13, 2019, CNN contributor Larry Noble published an article entitled "Soliciting dirt on your opponents from a foreign government is a crime. Mueller should have charged Trump campaign officials with it." After discussing Robert Mueller's investigation into Russian interference in the 2016 presidential election, President Trump's response to the investigation, and subsequent statements by President Trump, Rudy Giuliani (one of President Trump's attorneys), and Jared Kushner (President Trump's son-in-law and senior advisor) about potential (or hypothetical) involvement by foreign governments in the 2020 election, Mr. Noble wrote: "The Trump campaign assessed the potential risks and benefits of again seeking Russia's help in 2020 and has decided to leave that option on the table."

The Trump campaign sued for libel; the judge agreed that the statement was a factual claim, not opinion, and thus potentially actionable, but held that the campaign didn't adequately allege "actual malice," which in libel law means that the statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not."

Most of the allegations in the complaint regarding actual malice are conclusory. Plaintiff, for example, alleges in a purely conclusory manner that Defendants "clearly had a malicious motive" and "knowingly disregarded all … information when it published the Defamatory Article." The complaint's allegation that Defendants were "aware at the time of publication" that the Statement was false due to "[e]xtensive public information" is also conclusory and without factual support. {Even so, the Supreme Court has held that "mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth.} Allegations such as these amount to little more than "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," which are insufficient to support a cause of action.

Plaintiff's only other allegation of actual malice is that Mr. Noble had "a record of malice and bias against the President" as evidenced by a tweet and previous articles he had written. In the tweet, Mr. Noble wrote: "Trump cheats and lies, and when caught, lies again and claims the right to make the rules. He claims defeats as victories, takes credit for anyone's success and blames his failures on others …."

The Supreme Court has emphasized "that the actual malice standard is not satisfied merely through a showing of ill will or 'malice' in the ordinary sense of the term." The tweet might show Mr. Noble's ill will towards the President, but it fails to plead actual malice in the constitutional sense—that is, it does not show Mr. Noble made the Statement with knowledge that it was false or with reckless disregard of whether it was false.

In the previous articles, Mr. Noble "accus[ed] the President of criminal activity[] and of campaign finance and ethics violations." Plaintiff argues this is sufficient because [Palin v. New York Times Co. (2d Cir. 2019)] held "that actual malice could be proven by … the New York Times' prior stories which showed that it was aware of the true facts, but published the false facts in the piece at issue, in reckless disregard for the truth." That is not the case here.

In Palin, the prior articles directly related to the topic of the defamatory statement at issue. Here, however, the prior articles allegedly relate to criminal activity and campaign finance/ethics violations. They cover different topics than the Statement, meaning the prior articles did not touch directly on whether Plaintiff "assessed the potential risks and benefits of again seeking Russia's help in 2020" and whether Plaintiff "decided to leave that option on the table." The prior articles mentioned in the complaint simply do not show or suggest Mr. Noble "was aware of the true facts" regarding the Statement and published false facts in reckless disregard of the truth. For these reasons, Plaintiff did not adequately plead that the Statement was published with actual malice.

The Court, however, allows Plaintiff the opportunity to file an amended complaint.

Thanks to Prof. Enrique Armijo for the pointer.

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  1. Either inept attorneys (not surprising with Trump by now) or they simply “didn’t have the goods” (also not surprising).

    1. It’s not so much that Trump has lousy attorneys, it’s that his attorneys have such a lousy client.

      I hope they are savvy enough to get the money up front.

    2. These are not lousy lawyers who had the case dismissed because they did not understand the law. Winning the case in court was never the objective of filing. The case was filed for the media coverage it would generate. Like many lawsuits filed by Trump, they are filed to advance a narrative to the public.

  2. NY Times precedent makes libel claims by public figures impossible. A federal law should over-ride it. It should make it negligence per se to violate the journalism Code of Ethics. One of its items is the requirement to provide both sides of a story.

    https://www.spj.org/ethicscode.asp

    1. Um, “Congress shall make no law”.

      1. Also see City of Boerne v Flores.

    2. “NY Times precedent makes libel claims by public figures impossible. A federal law should over-ride it. It should make it negligence per se to violate the journalism Code of Ethics. One of its items is the requirement to provide both sides of a story.”

      That would be beyond oppressive. Not to mention, I don’t think many folks are pushing to expand federal torts. What next? The only news we get is a special news bulletin from a federal agency that decides: 1) How many sides there are to a story; and 2) whether all sides received proper coverage.

  3. Mr. Noble’s statement : “The Trump campaign assessed the potential risks and benefits of again seeking Russia’s help in 2020 and has decided to leave that option on the table.”

    Donald Trump, in an interview with ABC News Chief Anchor George Stephanopoulos : “It’s not an interference, they have information — I think I’d take it,” Trump said. “If I thought there was something wrong, I’d go maybe to the FBI — if I thought there was something wrong. But when somebody comes up with oppo research, right, they come up with oppo research, ‘oh let’s call the FBI.’ The FBI doesn’t have enough agents to take care of it. When you go and talk, honestly, to congressman, they all do it, they always have, and that’s the way it is. It’s called oppo research.”

    “The FBI director said that is what should happen,” Stephanopoulos replied, referring to comments FBI Director Christopher Wray made during congressional testimony last month, when he told lawmakers “the FBI would want to know about” any foreign election meddling. “The FBI director is wrong, because frankly it doesn’t happen like that in life,” Trump said. “Now maybe it will start happening, maybe today you’d think differently.”

  4. This decision presents an interesting issue:

    The Statement is also capable of being proven true or false. Either
    Plaintiff conducted an assessment regarding “the potential risks and benefits of again seeking Russia’s help in 2020” or it did not. Similarly, either Plaintiff “decided to leave that option on the table” or it did not. The Statement is thus subject to verification and satisfies the second factor of the test.

    This blurs the distinction between statements of fact and provable statements of fact. It doesn’t follow that because a statement is false, it is necessarily provably false.

  5. To add more, I agree with Rothbard. We should start to move away from the need of Libel Laws.

    Like Saying something about someone, not matter how outrageous IS Free Speech and that should applies to everyone regardless if it’s some Right Wing Blogger or a CNN Reporter

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