The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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.


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.