Free Speech

Alan Dershowitz's Libel Lawsuit Against CNN Can Go Forward

The lawsuit stemmed from CNN's coverage of Dershowitz's argument in the first Trump impeachment trial.

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From today's decision by Judge Raag Singhal (S.D. Fla.) in Dershowitz v. CNN, Inc.:

In January 2020, Dershowitz represented the President of the United States in an impeachment trial before the United States Senate. This dispute concerns CNN's coverage of an argument Dershowitz made to the Senate about whether a president can be impeached and removed from office if he takes any action that is motivated by a desire to be reelected. According to the Complaint, Dershowitz gave the following answer to a question by Senator Ted Cruz:

The only thing that would make a quid pro quo unlawful is if the quo were somehow illegal. Now we talk about motive. There are three possible motives that a political figure could have. One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own political interest and the third, which hasn't been mentioned, would be his own financial interest, his own pure financial interest, just putting money in the bank. I want to focus on the second one just for one moment. Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

Following the day's impeachment proceedings, CNN aired a clip of this argument that featured only the last sentence and omitted Dershowitz' words that a quid pro quo would be unlawful if the quo were somehow illegal…. Dershowitz alleges that several CNN commentators responded to the truncated clip and "exploded into a one-sided and false narrative that Professor Dershowitz believes and argued that as long as the President believes his reelection is in the public interest, that he could do anything at all—including illegal acts—and be immune from impeachment." Dershowitz alleges CNN commentators made the following defamatory statements [Dershowitz identified the underlined portions of these statements as those he alleges are defamatory]:

Having worked on about a dozen campaigns, there is always the sense that, boy, if we win, it's better for the country. But that doesn't give you license to commit crimes or to do things that are unethical. So, it was absurd. What I thought when I was watching it was this is un-American. This is what you hear from Stalin. This is what you hear from Mussolini, what you hear from authoritarians, from Hitler, from all the authoritarian people who rationalized, in some cases genocide, based on what was in the public interest." —Joe Lockhart @ 7:11 p.m., January 29, 2020.

The president's defense team [Dershowitz] seems to be redefining the powers of the president, redefining them towards infinity."… [truncated clip played] … "If you look at what he says there it blows your mind. He says if a president is running for re-election because he thinks getting elected will help America, he can do anything, anything. And that redefines the presidency and America." —John Berman @ 6:17 a.m., January 30, 2020.

I did not go to Harvard Law, but I did go to the University of Texas School of Law, where I studied criminal law and constitutional law, but never dreamed a legendary legal mind would set them both ablaze on the Senate floor. The Dershowitz Doctrine would make presidents immune from every criminal act, so long as they could plausibly claim they did it to boost their re-election effort. Campaign finance laws: out the window. Bribery statutes: gone. Extortion: no more. This is Donald Trump's fondest figurative dream: to be able to shoot someone on Fifth Avenue and get away with it." —Paul Begala on CNN.com, January 29, 2020 @ 9:11 p.m.

This narrative, claims Dershowitz, damaged his reputation as a legal scholar and subjected him to ridicule on news outlets, talk shows, and social media….

CNN argues that its airing of verbatim statements that Dershowitz made on the floor of the United States Senate is unquestionably protected by the fair report privilege…. The fair report privilege applies "[i]f the report of a public official proceeding is an accurate or a fair abridgment." …

[T]he question is whether CNN's broadcasts presented an accurate or fair abridgment of Dershowitz' comments to the Senate…. During the impeachment trial, Senator Ted Cruz submitted a question for Dershowitz to answer: "As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy?" Dershowitz answered at length and gave several hypotheticals of quid pro quo that he considered would be lawful.

At several points in his response, Dershowitz stated that a quid pro quo that is unlawful would be one based on an illegal motive….. "The only thing that would make a quid pro quo unlawful is that if the quo were in some way  illegal… There are three possible motives that a political figure can have: One, a motive in the public interest, and the Israel argument would be in the public interest; the second is in his own political interest; and the third, which hasn't been mentioned, would be in his own financial interest, just putting money in the bank…. [F]or it to be impeachable, you would have to discern that he or she made a decision solely on the basis of, as the House managers put it, corrupt motives, and it cannot be a corrupt motive if you have a mixed motive that partially involves the national interest, partially involves electoral, and does not involve personal pecuniary interest.

"The House managers do not allege that this decision, this quid pro quo, as they call it—and the question is based on the hypothesis that there was a quid pro quo. I am not attacking the facts. They never allege that it was based on pure financial reasons. It would be a much harder case. If a hypothetical President of the United States said to a hypothetical leader of a foreign country: Unless you build a hotel with my name on it and unless you give me a million-dollar kickback, I will withhold the funds. That is an easy case. That is purely corrupt and in the purely private interest.…" …

CNN presented an abridgment of Dershowitz' answer to Senator Cruz' question. The abridgment is not accurate, to the extent that it omitted a crucial qualification: that an illegal motive for a quid pro quo would be corrupt. As a result, the commentators' statements—that Dershowitz believes a President can do anything, even commit crimes if it would help his re-election—are not based upon a fair and accurate summary of Dershowitz' statement to the Senate.

CNN argues that editors and publishers have great discretion to determine what information to publish. This is correct. But the qualified fair report privilege "merely means that the report of [official] proceedings must be correct."

CNN argues that Dershowitz' response to Senator Cruz' statement was ambiguous and that CNN was reasonable in its belief that Dershowitz argued "that presidents cannot be impeached for actions taken to win an election if the President believes his own victory would be in the public interest, regardless of the legality of those actions." That is an argument that CNN may present to a jury. But because the broadcasts did not present a fair and accurate abridgment of Dershowitz' remarks, CNN cannot avail itself of the fair report privilege.

Finally, CNN argues that the media has no obligation to present additional information that would present a subject in a better light. This too is correct…. [But] the CNN broadcast segments set forth in Dershowitz' Complaint were focused specifically on Dershowitz' comments to the Senate and, as presented on air, changed the gist of what Dershowitz said. For the fair report privilege to apply a defendant must have "presented a fair and accurate report of the source documents." The CNN broadcasts do not meet that standard….

CNN's next ground for dismissal is that the allegedly defamatory statements were non-actionable opinion…. [But] "[a] statement that although ostensibly in the form of an opinion 'implies the allegation of undisclosed defamatory facts as the basis for the opinion' is actionable." Further, "where the speaker or writer neglects to provide the audience with an adequate factual foundation prior to engaging in the offending discourse, liability may arise." The Complaint alleges that CNN's broadcasts lacked the "adequate factual foundation" that would have prevented the commentators from mischaracterizing Dershowitz' argument. The Court concludes that the Complaint plausibly alleges that the comments made on CNN and CNN.com were defamatory statements of mixed opinion….

[As to actual malice, Dershowitz] alleges that CNN knew for certain that he had prefaced his remarks with the qualifier that a quid pro quo could not include an illegal act because it aired the entire statement earlier in the day, but that CNN knowingly omitted that portion when it played the truncated clip "time and again." He alleges that the truncated clip was created "intentionally and deliberately with knowledge and malice to facilitate its ability to falsely claim that plaintiff said the opposite of what he actually said." And, finally, Dershowitz alleges that commentators made their statements with knowledge or reckless disregard that they were false….

In a footnote, CNN argues that Dershowitz' "claims of disinterested political malevolence are insufficient" to establish actual malice. The Court agrees and, further, concludes that these allegations should be stricken as immaterial and impertinent.

In paragraph 14 of the Complaint, Dershowitz alleges:

Professor Dershowitz was one of the most revered and celebrated legal minds of the past half century. His reputation relating to his expertise in criminal and constitutional matters was one that lawyers would only dream about attaining in their lifetimes. However, Professor Dershowitz appears to have made one mistake. He chose to defend the President of the United States and defend the U.S. Constitution at a moment in time where CNN has decided that doing so is not permitted. For this, CNN set out to punish him and destroy his credibility and reputation, and unfortunately, succeeded.

The Supreme Court has stated that "[a defendant's] motive in publishing a story … cannot provide a sufficient basis for finding actual malice." … Paragraph 14 of Dershowitz' Complaint alleges that CNN was motivated by political animus. As Judge Lamberth noted in Arpaio, "Allegations of 'leftist enmity' cannot trump the guarantees of the First Amendment." … [T]he allegations in paragraph 14 are immaterial to the claim and are an impertinent salvo that do not belong in this case.

NEXT: Justice Sotomayor Expurgates The Word "Alien" From a Justice Marshall Decision

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  1. A question for the lawyers: Do you advise CNN to settle?

    1. Of course, but for how much? There may not be a sane amount of money that would satisfy a plaintiff who is suing from crazy ego rather than anything resembling rationality.

      I mean, the argument against settling is mostly non-legal. CNN might figure it hurts their brand in some way. But if the only settlement Dershowitz will take involves $250mln in damages or something like that, you’re left with no alternative but to proceed. (He’s suing for $50mln in compensatory damages and $250mln in punitive damages.)

      1. If I were him, I would ask for $ 1 and a snivelling, humiliating apology, in which CNN admits to deliberately distorting his words for political purposes.
        But that’s just me. Maybe Dershowitz needs the cash.

      2. What if he asked for no money, just an apology and an admission that CNN published a misleading and distorted report for pure political motives? Would you advise your client to offer that? Or would crazy ego overcome rationality?

        1. I would advise my client to explain carefully what is important to them, what their priorities are in this litigation, and advise them based on what they tell me. And that may well be that “a snivelling, humiliating apology” will be very costly to them in terms of viewership and advertising. But whether that is true or not is not something that I would presume to know. They have other advisers for that.

      3. CNN might figure it hurts their brand in some way.
        Their brand is already in the toilet, and circling the bowl.

    2. Probably. I don’t think losing the Motion to Dismiss was shocking and you got a pretty narrow articulation of what the judge thinks will show actual malice. The judge looks like he’ll support pretty narrow discovery on malice. I’d recommend that they have counsel tie down exactly what emails are going to be found discussing Dershowtiz. If there’s nothing in there that points at a deliberate attempt to manipulate the video cut, then let discovery play out a bit to exhaust the other side. If there’s bad emails, now’s the time to settle.

  2. Time for the drive by liberal media to be held accountable. Can’t wait until the time of the Great Reconciliation comes….

    1. I agree.

      I think he should go for the “pound of flesh.”

      It’s the only thing that will end this foolishness….

    2. Held accountable for accurately reporting Dershowitz’s bullshit hackery?

  3. One thing that is interesting, and IMO beneficial, about this suit, is that it involves a distorted editing of someone’s words, leading to the person saying something different (in the edited version) than what he originally said. Or at least that is what Dershowitz is alleging.
    This is a common technique in the modern media to smear people. After all, what is more believable than a person’s own words caught on tape?
    My impression is that courts find this kind of defamation a hard sell, but they shouldn’t. Would be nice to see this kind of theory succeed.

    1. The technique is commonly used by the media and by other advancing their point of view. How many political campaigns are built on a snippet quoted from your opponent. A snippet that may or may not reflect what was actually said. I would note that the technique is pretty broadly used across the political spectrum. But where does this leaving anyone quoting a person. Are you obligated to quote the whole commencement address because if you take quotes from it you could be subject to a lawsuits?

      1. Like most legal questions, the answer is, “it depends.”

        If you edit out the speaker coughing and blowing his nose, then you should have no liability.

        If your editing distorts his words to the point where he is saying the opposite of what he said without the editing, then you are opening yourself up to a lawsuit. Assuming the new version is defamatory.

    2. Common? It’s SOP at this point.

      How many news reports have you seen lately that have actual quotes, let alone in context? These days mostly you just get a paraphrase with one or two words in quote marks.

      And, why, when the paraphrase isn’t any shorter than the original quote? So they can put words in somebody’s mouth, and hopefully trick you into thinking he spoke them.

      That’s in print media. I’m waiting for the broadcast media to start using deep fakes and defend them as “audio-visual paraphrases”.

  4. Christ, do people spend this much time responding and tweeting at things they never bothered to read? It’s somewhat disappointing.

    I am not that much a fan of Deshowitz, but come on. Those journalists ought to know better.

    1. What, go back and check out the original source? That’s so 20th Century!

    2. What makes you think they don’t know better? That’s what makes it defamation, not an “oopsie”.

  5. To be honest though, I didn’t realize there was much of a reputation left to preserve. If you want to hang the guy I can think of many many ways of doing that without misinterpreting what he said …

    1. “If you want to hang the guy I can think of many many ways of doing that without misinterpreting what he said …”

      As if that matters. With Trump, there was always such a plethora of things to criticize or disagree with. And yet, they couldn’t help but tell endless bald faced lies, day after day after day. The biggest of which many are still clinging to.

      1. I’ve always thought that, if they resort to those sorts of lies and misrepresentations, it’s evidence that, no, there isn’t actually enough to honestly criticize, and you probably think there is only because you’ve let the lies and misrepresentations influence you.

        1. “He’s an egotistic blowhard” won’t convince nearly as many people to change their behavior on election day as “he’s a Russian agent”. “There’s a massive surge in illegal border crossers, which makes it hard to satisfy all the relevant laws and settlement agreements simultaneously” does not have the emotional impact of “that happened because he hates brown children and wants them in cages”.

        2. Bingo

          I’m a trusting individual. If you tell me that your policies / positions are trash, I’ll believe you.

          Lying about something says you know the truth will hurt you. Making up lies about what Dersh said indicates that you think what he said was perfectly reasonable and correct.

          And there were just making up lies in their “response” to Dersh

        3. I’m not saying there is “enough” to actually convince the public or that they’d be right in their criticisms and disagreements. Just saying, there’s content to work with and they could stick to actual substantive disagreements that are real. But you’re right, they probably rightly judge that it’s not enough so they lie and misrepresent instead.

  6. Tough call. Harvard indoctrinated scumbag, sleazeball vs CNN, a rabid agent of the Chinese Commie Party.

  7. Volokh vs Dershowitz, at the Supreme Court, two of the best 1st amendment legal minds in history. Hopefully the Supreme Court will have pay per view by then.

    tbh, I would not have sued. I can only see a lawsuit as enhancing CNN’s reputation – keep in kind they are no longer a news network, they are all Anti-Trump Democrats, all the time. That is their brand under Zucker. I am not even sure that the typical CNN viewer would parse the qualification. They might only see “defended Trump”. Dershowitz revenge should be go on Fox, complain about CNN, and let the viewers eat it up. Fox has way better viewership.

  8. He may be able to state a claim, but I can’t imagine he suffered any damages. If anything, CNN likely enhanced his reputation by omitting the fact that he is a pedophile enabler, and almost certainly a pedophile himself.

    1. “by omitting the fact that he is a pedophile enabler, and almost certainly a pedophile himself.”

      Because, well, Orangeman Bad…..

      1. I was alluding to his associations with Jeffrey Epstein. (though I suppose it’s always useful to remember that Trump is a pedo too).

  9. Same commentator, different name, mute even more satisfying.

    1. It works like that? IP based or something?

      1. I think he just means he believes himself to be muting two accounts created by the same person.

    2. “Same commentator, different name, mute even more satisfying.”

      Same right-wing bigots, every day.

  10. I don’t quite see how the undisclosed facts exception works here.
    The usual formulation is that a speaker’s defamatory opinion becomes actionable if presented so as to imply the existence of facts that substantiate the statement. That’s not what allegedly happened here. According to the complaint, CNN made defamatory statements based on disclosed facts, but that those facts were incomplete.
    Instead, a jury could find that the misquote itself was defamatory by implication, as the omitted context changed the meaning of those of Dershowitz’s words that were quoted. The later comments then provide evidence that CNN knew their misquote would lead to those defamatory conclusions because their own commentators came to those same conclusions, and in that role it doesn’t matter whether those comments were opinions

    1. Agree with both points.

      That said, show me a single person on this or any other planet whose opinion of Dersh suffered because of this. It could only have enhanced his reputation with the Trump crowd, and to anti-Trumpers it was already as low as it could go.

      1. I agree right back at you. I was concerned with “whether”, “how much” is a whole other ball game.

      2. Presumably under US defamation law, as under defamation law elsewhere, the question isn’t whether the plaintiff’s reputation with actual people was hurt, but whether his opinion with a “right-thinking member of society” was hurt? (See also EV’s blog post about whether it is defamatory to say that someone is cooperating with the police.)

        1. That is a question, as the plaintiff must show that the statement was defamatory or, as the Supreme Court of Florida puts it, “prejudices the plaintiff in the eyes of a substantial and respectable minority of the community”.
          However he must also show actual damages traceable to the defamatory statement. Florida, following Gertz, eliminated the presumption of damages in per se actions against media defendants.

  11. The piece was unfairly edited only if you accept that extortion is not a crime. But it is.

    1. In the context of international relations? Wasn’t Bidens “bragging speech” about getting the Ukranian prosecutor fired, by threatening to withhold money unless they did so, exactly that type of “extortion”?

      It’s an ancient technique in international relations. Hell, sometimes they go straight to seizing their money in the US, no court case, no criminal charges. Just straight up arm twisting.

    2. If “extorting foreign governments to act in the best interest of the US government” is a crime, then we need to jail every single effective diplomat the US has ever employed.

      Do you people realize how bad you make your side look, when you engage it such blatant stupidity?

      Seriously, the best possible interpretation of you advancing that claim is that you’re 12.

      1. Getting the Ukrainian government to announce a fake investigation of Trump’s political adversary is not “acting in the best interest of the U.S. government.” It was solely in Trump’s political interests.

        Dershowitz attempted to elide this distinction by arguing that the president acting to get himself reelected is automatically acting in the best interests of the U.S. government because the president thinks he’s the best person for the job.

        1. Now you are the one lying.

          Trump was attempting to get the Ukrainian government to engage in an actual investigation of the corrupt actions of the then VP of the United States.

          As fighting government corruption is most certainly “acting in the best interest of the U.S. government”, Trump’s actions were clearly justifiable.

          What’s never been remotely justifiable was Bursima paying Hunter Biden > $50,000 a month to be on their board. Because they only thing he had to offer was corrupt access to his corrupt hack of a father, who was appointed the Obama Admin point man on Ukraine shortly before Bursima decided to start paying off his son.

          1. A weird thing to get mad about, given the open nepotism of Trump.

            1. Really?

              Which foreign companies were paying Trump’s kids $50,000+ a month?

              I missed that news, please do enlighten me

          2. Trump was attempting to get the Ukrainian government to engage in an actual investigation of the corrupt actions of the then VP of the United States.

            No, he wasn’t. The testimony from the actual people involved was quite clear that the only thing he wanted was an announcement of an investigation.

            The contrary argument is easily refuted, because

            (a) if the U.S. thought that the former Vice President of the United States had acted corruptly, then the proper body to investigate would be the United States Department of Justice. The U.S. government does not outsource its investigations of corrupt American officials to foreign governments; and

            (b) if the U.S. needed the assistance of a foreign government to conduct an investigation, then the proper procedure is for the Attorney General of the U.S. to contact the appropriate officials in that country and formally request assistance (indeed, that’s what the MLAT between the U.S. and Ukraine specifies) — not to send the president’s personal attorney to conduct a rogue investigation.

            What’s never been remotely justifiable was Bursima paying Hunter Biden > $50,000 a month to be on their board.

            That’s between Burisma and their shareholders.

            Because they only thing he had to offer was

            a famous name. At the same time they put Biden on their board, they put a former president of Poland on the board. Newsflash: companies routinely put prominent names on their boards for the perceived prestige. (No, Hunter Biden himself was not particularly prominent, but it’s a random company in the Ukraine, not IBM. They’re not going to get first tier people. They’re going to get former presidents of Poland and relatives of U.S. politicians.)

            1. 1: Everyone who’s not lying knows that the former Vice President of the United States had acted corruptly. The challenge is to prove it in a court of law.

              2: Trust the DoJ? Trust the people who lied to the FISA Court so they could spy on the Trump Campaign? Trust the people who were busy covering up and covering for corrupt Democrats (see Hillary’s email server)?

              Are you really as stupid as you’re pretending to be, or just fundamentally dishoenst?

              1. 1: Everyone who’s not lying knows that the former Vice President of the United States had acted corruptly. The challenge is to prove it in a court of law.

                A challenge that they apparently not only could not meet, but did not even try to meet. But still, Greg J “knows” this to be true. And yet he doesn’t know that Donald Trump did the things that there’s public evidence of, like extorting the Ukrainians to announce an investigation of Biden or inciting an insurrection.

                2. Yes, trust the DoJ, led by sycophants Jeff Sessions and Bill Barr. There were no “the people” who lied to the FISA Court. There was one guy, Kevin Clinesmith, who they of course did not know at the time had lied to the FISA Court, and of course this was to investigate (I like how Trumpkins pejoratively label a search warrant as “spying”) Carter Page, not “the Trump Campaign.”

                See Hillary’s email server what?

            2. Me: What’s never been remotely justifiable was Bursima paying Hunter Biden > $50,000 a month to be on their board.

              You: That’s between Burisma and their shareholders.

              No. Corrupt foreign businesses paying bribes to family members of US politicians who are using their offices to do favors for teh corrupt countries are the US’s business.

              And it’s rather scummy of you to pretend otherwise

              Me: Because they only thing he had to offer was

              You: a famous name. At the same time they put Biden on their board, they put a former president of Poland on the board. Newsflash: companies routinely put prominent names on their boards for the perceived prestige.

              1: They don’t pay them $50k+ a month
              2: Drug addict Hunter Biden, who married his dead brother’s wife after getting her pregnant, then got a stripper pregnant, couldn’t provide “prestige” to anyone

              What he could provide was the corrupt services of his corrupt father

              And he did

              1. No. Corrupt foreign businesses paying bribes to family members of US politicians who are using their offices to do favors for teh corrupt countries are the US’s business.

                Weird, then, that the Trump administration never even investigated this. Weird that congressional Republicans never investigated this, even though they opened roughly 793 investigations of Benghazi.

                It’s almost as if they knew there was nothing there, and all they wanted was to create the appearance of impropriety to undermine a political opponent. Almost.

                And what favor for a corrupt country?

                1: They don’t pay them $50k+ a month.

                You don’t specify where you get your knowledge of corporate board compensation. I assume it’s from the same source you get the rest of your information: your posterior.

                Drug addict Hunter Biden, who married his dead brother’s wife

                He did not. Par for the course for you in terms of accuracy.

                Moreover, your timeline is wrong; the events you inaccurately describe occurred long after he served on Burisma’s board.

                What he could provide was the corrupt services of his corrupt father

                And he did

                Except for the lack of corrupt services, yes. Literally the only thing Joe Biden is even alleged to have done is to have delivered a message from the U.S. government.

                1. 1: The Trump Administration started investigating this, and the Democrats impeached Trump for it. What is the world of stupidity you live in?

                  2: As for the DoJ? I’m sure Durham will get to that after he’s done prosecuting all teh FBI and DoJ people who were caught lying to the FISA Court

                  3: Getting the anti-Bursima prosecutor fired, an act Joe Biden publicly and on video bragged about, was a corrupt act by the VP made as a payoff for all the bribes Bursima sent his family.

                  You enjoy your lies. You enjoy your raving stupidity. I’m done with this exchange

  12. The headline here:

    Trump ‘big lie’ sycophant draws Trump judge, gets favorable ruling

  13. Nothing on George Floyd today, but a portfolio of right-wing grievances against modernity, reason, progress, and diversity: Just another day at a White, male, movement conservative blog that has now operated for 11 days without use of a vile racial slur.

    1. Arthur, you are right to remember George Floyd. May his soul be bound up with the bonds of life.

      Now to my question: Would you advise CNN to settle?

    2. Ah, the racist strikes again.

      Listen up, bigot, describing something as “white” in outlook is inherently racist. Grow up

  14. CNN is a partisan TV channel that distorts everyone it disagrees with. Dershowitz’s reputation was not harmed. Sensible people do not believe CNN anyway.

    1. I agree, but I noted at the time the conversion of CNN from CNN to the anti-Fox News.

      Fox News fans should understand many people view it the way you view CNN since 2016. For goodness’ sake, it was the Benghazi channel for years, trying to keep that alive daily to hurt presumptive 2016 nominee Clinton.

      This can’t possibly have been lost on you.

      1. “it was the Benghazi channel for years”

        So, looking into a terrorist attack on a US embassy on 9/11, where the Administration lied to the public for no national security reason, and a US Ambassador was murdered, THAT, to you, is a “focus beyond the pale”?

        What’s in like being completely nuts?

  15. Professor Dershowitz made clear in his answer that “if the quo were something illegal includes an illegal act or thing as the quo, not just an illegal motive.

  16. The judge’s remarks seem premised on a tacit complication. The “omitted,” part of Dershowtiz’s argument is itself controversial. The notion that conviction for impeachment requires evidence of statutory lawbreaking was not universally accepted then, and is not now. There is no shortage of legal experts who assert the contrary.

    What if Dershowitz is legally mistaken when he asserts a need for criminal lawbreaking to justify a charge of quid pro quo in an impeachment? What if Dershowitz was actually lying about that question, which he would be free to do because he was in a political tribunal, and not a legal one?

    Either way, wouldn’t that have bearing on the question whether CNN’s commentary was permissible opinion, and not a question of fact? Assuming the CNN publication was found to be about a question of fact, but CNN was of the opinion that the omitted part of Dershowitz ‘s commentary included mistakes or lies, how could a court conclude Dershowitz had been libeled by the omission? Could the court rule that CNN was not entitled to its opinion, but instead had to take as true Dershowitz’s actually controversial claim?

    1. It doesn’t matter whether Dershowitz is mistaken about that, because we can see from CNN’s commenters that the edited video gives people the false impression that his argument was thoroughly different than it truly was. Unlike his actual argument, that falsely implied argument is not colorable, which is why attributing it to him is defamatory.

      1. This, CNN’s own reporters either deliberately lied to their viewers about what he said or the clip was so deceptively edited that even employees of CNN were led to believe he had said something he had not. Either scenario proves his point that the editing was defamatory.

        Note: this would be a great time for someone to reference that Simpsons episode, where the local reporter edited together individual words to make it sound like he was admitting to grabbing someone’s ass.

      2. Michael P, put my argument in its strongest form:

        Hypothetically, Dershowitz is lying about a need for criminal conduct or criminal motivation to prove a quid pro quo for impeachment. Hypothetically, there is no such legal constraint on impeachment, and Dershowitz knows it. So for the sake of argument, discount to zero that part of what Dershowitz said. If he was lying, he did not believe any such constraint actually existed when he said this:

        Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

        So please explain, just for the sake of our debate, with Dershowitz lying about constraint, and either arguing sincerely about the quote above, or lying about that too, how is that quote NOT evidence to justify CNN in publishing opinions including the three cited? If you choose to answer, try not to fight the hypothetical. If you do that, you have to explain why CNN was not justified in forming its own opinions about Dershowitz’s truthfulness and methods of argument.

        I was watching when all this went down, and followed Dershowitz closely. I concluded at first that he was giving Trump zealous advocacy, and putting the best lawyerly face he could on false claims about the constitutional basis for impeachment. I thought it was disgusting, in the way zealous advocacy on behalf of defending criminals is also often disgusting—disgusting, but necessary lest due process be too heavily burdened.

        Then, when Dershowitz got to the part about self-interest in getting elected justifying a quid pro quo, I lost it. The zealous advocacy premise broke down, and left me yelling at the television. I went away wondering at first if Dershowitz had simply proved himself senile, but discovered I could not reconcile that notion with the previous one that he was alert enough to do zealous advocacy, and walk a fine line while doing it.

        I don’t think there was enough coherence in anything Dershowitz said to justify any claim that it could be mischaracterized, except by calling any of it truthful.

        1. I’ll put your argument in its strongest form when you do the same for Dershowitz’s argument. We might as well start arguing over whether members of Congress can be impeached over trying to impeach the president for corrupt purposes. Impeachment was never meant to be a purely political action, but that claim is core to your assertion that Dershowitz is “lying”.

        2. “So please explain, just for the sake of our debate, with Dershowitz lying about constraint”

          If that is what you believe, then you attack him for lying about the constraint.

          But, even if you believed that Dershowitz was lying about the constraint, it still doesn’t excuse what the CNN people said about him.

          CNN claimed that Dershowitz said that you could commit a crime, and so long as you believed it would help your re-election it wouldn’t be impeachable. Your “argument” is, at best, orthogonal to CNN’s lies. So, keep it up, if you wish to get laughed out of court

          1. With the constraint of necessity to prove criminal conduct out of the picture, as it has been in the Supreme Court, for instance, that is exactly what Dershowitz did say. I will quote it again for you:

            Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

            1. “Qid pro quo” = “something for something”

              “The only thing that would make a quid pro quo unlawful is if the quo were somehow illegal.”

              This is a clear, straightforward statement that if Trump traded his “something” for “something” illegal, then the quid pro quo would be unlawful, and impeachable.

              What part of that are you claiming that I have wrong? Because, frankly, what you’re saying makes no sense when applied to this situation.

              And what CNN claimed is that Dersh claimed the President could legally trade his “something” for someone else’s illegal “something.” Which is a directly opposite to what Dersh said

  17. B. Defamation
    The parties agree that Florida law applies to this dispute. In Florida, a defamation claim has “five elements: (1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least
    negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory.” Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008).

    I think it’s going to be hard for Dershowitz to prove “(4) actual damages.”

    A quick search of Fox News shows he’s been on there since Jan. 2020, about 5 – 6 times.

  18. “So I know, thanks, before you tell me, that a documentary must have a “POV” or point of view and that it must also impose a narrative line. But if you leave out absolutely everything that might give your “narrative” a problem and throw in any old rubbish that might support it, and you don’t even care that one bit of that rubbish flatly contradicts the next bit, and you give no chance to those who might differ, then you have betrayed your craft. If you flatter and fawn upon your potential audience, I might add, you are patronizing them and insulting them. By the same token, if I write an article and I quote somebody and for space reasons put in an ellipsis like this (…), I swear on my children that I am not leaving out anything that, if quoted in full, would alter the original meaning or its significance. Those who violate this pact with readers or viewers are to be despised.”

    – Christopher Hitchens

  19. ‘But it pays well!’

    -Michael Moore

  20. IANAL. So this post motivated me to look up the real definition of malice. I found NYT v Sullivan, the actual malice standard he or she must also prove that the statement was made with “actual malice”, meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.

    If that’s it, then there is no element of intent, contrary to the ordinary meaning of the word malice. Motive really is irrelevant. It makes me proud that IANAL.

    1. Right, “actual malice” in defamation law is a term of art that has very little to do with the ordinary meaning of the words contained within it. “Actual malice” is not “you really meant to harm the other person” but rather, in plainer terms, “you knew it wasn’t true or you didn’t care enough to figure out whether it was true.”

      Suppose I really, really dislike the mayor and want to cause him problems. So I tell people that the mayor beats his wife. The “actual malice” is not, directly, my feeling toward the mayor but the degree to which I investigated whether he beats his wife. Basically, if I know he doesn’t beat his wife or didn’t bother trying to find out whether he beats his wife, I may have acted with “actual malice.”

  21. Apologies if someone has already mentioned it, but at least two Conspirators (Sullum and Post) thought that Dershowitz’s full take was ridiculous and “inane.” While I think CNN was wrong, that doesn’t necessarily mean Dershowitz was right.

    1. It doesn’t matter whether or not Dershowitz was right. What matters is that CNN flat out lied abotu what he said, and what his position was.

      What matters is that there’s no reasonable way to get from what he said, to what CNN said he said.

      When you have a legitimate argument against someone, the way you demonstrate that fact is by not lying about them. That CNN felt they had to lie about what Dershowitz said is a strong argument that Dershowitz’s argument is correct.

      So, if you disagree with Dershowitz’s argument, you should be even more pissed at CNN

  22. This is why we need to re-institute dueling.

  23. If Dershowitz seriously thinks that his reputation was damaged by CNN, and not by his choice to defend and associate with Trump, then he’s an idiot.

  24. Second thought: Given how much Fox News (and conservative media in general) blatantly lies (not just “deceptively edits”, flat-out no-holds-barred lies) about what Democrats/liberals say/do, is this really the precedent y’all want to go with?

    If Dershowitz can win his case, then there is a huge amount of far easier cases heading Fox’s way.

  25. I’m Team Dersh here. The implications for FOX News if he’s successful are devastating.

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