Trump's Complaint Against the New York Times: A Long Press Release that Mangles "Actual Malice"

It’s mainly praise for Trump: “President Trump secured the greatest personal and political achievement in American history.”

The complaint for Donald Trump against the New York Times reads like a long press release. It says little to show the falsity of the factual statements it identifies, and mainly praises Trump. Among the many examples: in its second paragraph it states that in the 2024 election "President Trump secured the greatest personal and political achievement in American history." Or from paragraph 12:

Thanks solely to President Trump's sui generis charisma and unique business acumen, "The Apprentice" generated hundreds of millions of dollars in revenue, and remained on television for over thirteen years, with nearly 200 episodes. "The Apprentice" represented the cultural magnitude of President Trump's singular brilliance, which captured the zeitgeist of our time.

Beyond that, what jumped out at me is the complaint's repeated references to the subjective "malice" that the complaint says the defendants have toward Trump. As every law student who has taken a First Amendment class knows, "actual malice" in New York Times v. Sullivan is a term of art – the Court has repeatedly made clear that it is an objective standard that focuses on whether the defendant was reckless about the possible falsity of a factual claim, and not on the defendant's hatred, ill will, or enmity. But the complaint's references to actual malice focus on subjective hostility to Trump. For example, paragraph 117 begins:

Defendants' actual malice manifested in numerous ways. Defendants launched investigations into President Trump, his family, and his businesses for the express purpose of harming all three.

In the claims for relief, the complaint says that the defendants were aware of falsity but emphasize subjective dislike of Trump. Paragraphs 139 and 153 both say:

The statements were published by Defendants with actual malice, as part of a long term pattern, with oppression and fraud in that they were aware at the time of the falsity of the publication and thus, made said publications in bad faith, out of hatred and ill-will directed towards President Trump without any regard for the truth.

I assume that the lawyers know that judges who care about the law will focus on the objective standard as laid out by the Supreme Court. So why the focus on hatred and ill will? It's possible they think this will help persuade the public, but it's hard to imagine that many members of the public (other than Volokh Conspiracy readers!) will learn anything about this complaint, much less care. Maybe they believe that the judge who will hear this case is likely to be a political hack who will like the invocations of ill will, but even then an ordinary complaint seems like the smarter move, as it would give a political hack more cover to be political. Maybe they think this will persuade journalists, but journalists who are not ardent Trump supporters will likely call lawyers or law professors and be told that actual malice is an objective standard.

My guess is that the answer is tied to the lavish praise of Trump I noted at the beginning of this post: I think the complaint centrally has an audience of one (Trump), and more broadly his hardest core supporters. It's not written to persuade, but instead to affirm – that Trump is the greatest and that his opponents are deranged (from paragraph 107: "Defendants baselessly hate President Trump in a deranged way"). So maybe it reads like a press release because it is a press release – to the most devoted devoted sliver of his base.

[Edit: I initially used the term "brief" to avoid having readers think I was talking about a complaint in the ordinary sense rather than the legal sense, but a user comment led me to conclude otherwise, so I changed it to "complaint."]

Comments

[DragonCommentor]

Not a huge deal, but it’s a complaint, not a brief.

[Stuart Benjamin]

I wrote "brief" to avoid having readers think I was talking about a complaint in the ordinary sense of Trump complaining rather than the legal sense. But on reflection I think the readers likely won't make that mistake, so I'll change it to "complaint."

[David Nieporent]

For the record, I think you could've used "lawsuit" instead of "complaint," and it would have gotten the point across.

[Stephen Lathrop]

Cut to the chase. Does the brief warrant professional sanctions for the lawyers who presented it to the court?

There ought to be a lot more of that happening.

Seems like Trump has even been winning considerable settlements on cases that maybe ought to have been sanctionable—presumably winning by application of political extortion, not legal merit. Should the courts just go along with that as it gets generalized?

[Darwinnie]

The lawyers are barred in Florida and Texas. I do not see those states taking any action against the personal lawyers of Donald J Trump. Let’s be real.

[y81]

This case is filed in federal court, where the judges can apply various sanctions (though not state disbarment) when appropriate.

If the judge did that, it would be funny to watch Josh Blackman blow a gasket.

[SRG2]

It's bizarrely funny. No sane plaintiff would go along with such a brief.

[Jack Jordan]

I'm certain Trump and his attorneys are blatantly engaging in extortion and racketeering. They seem to not even be trying to prevail in a court of law. They're using lawsuits as a means to openly--publicly--extort payments from Trump's victims so that they can avoid the damage that Trump's supporters (inside or outside government) will inflict on his victims if they fail to pay Trump.

[JD Caleb]

From a litigator's perspective, this is kind of an odd take. Complaints and briefs are very different. The complaint need only allege plausible facts sufficient to state a claim. Regarding actual malice, it may be that Trump (through his attorneys) wants to expand the test to include colloquial malice rather than simply legal malice. So, they allege those facts. That's not an unusual strategy to pursue in impact litigation. It's also not unusual to write complaints as PR/advocacy pieces as well. I would venture to guess (because I've read many of them) that most complaints filed by the ACLU include significant advocacy in addition to alleging essential facts.

[loki13]

SAY WHAT?

No. Just no. From a litigator's perspective? Are you effin' kidding me?

From a litigator's perspective ... well, you don't work for Trump because he famously stiff his attorneys. I mean, obviously now that he can extort money as the President, that's changed, but whatever.

Anyway, from a litigator's perspective, if you want to be dramatic and have a "press release" pleading, you can put that in the alleged facts. But do you know what else you do? You also make sure you can at least plausibly plead correct legal elements in the counts!

Do you know what litigators do not do? They don't beclown themselves by talking about "ill will" as an element of the actual malice standard, because ... courts will look at this. And it makes you (and your client) look bad. It's a loss of credibility.

From a litigator's perspective, if you had to put in that BS because your client is a narcissist, you can still say all you want about .... the Apprentice, and Trump is the greatest, the Lamestream Media hates him, and whatever. But at some point, you simply have to allege something (Iqbal/Twombly) factual ... and given the standard, you certainly don't want to say that it was knowing it was false due to ill-will. You'd want to allege plausible allegations that would support a reckless disregard of the truth, independent of ill-will (which you can blather about regardless).

THEN, if you want to argue for an extension of modification of the law, you can do so. But here's the thing- that's the backup argument, because a knowing standard is much higher, and would require proving so much more. Why would you?

"Look, I can prove it was false.* And I can prove that they published it without going through all the steps required with reckless disregard to the falsity of the facts. But I'm also going to show that they knowingly false facts - knowing that they were false- solely out of a desire to hurt me."

I gotta say- this must be the most bass ackwards "litigator's perspective" I've ever heard of. This isn't a litigator's complaint- this is a fundraiser's complaint.
*Yeah, this is a problem with this Complaint too, but whatever.

[Schroeder4213]

In fairness, the complaint does (eventually) address the actual elements of actual malice. Paragraph 136, for instance, says "Defendants published such statements ... with knowledge of the falsity of the statements, and/or with reckless disregard of their truth or falsity." That's the textbook definition of legal "actual malice."

Also, while 90% of this is a legally frivolous press release, some specific allegations might survive a motion to dismiss. See, e.g., Paragraph 88(u), which alleges that Trump was falsely accused of committing a crime. Seems like that is at least a summary judgment issue.

[Darwinnie]

But just stating the legal standard doesn’t suffice anymore. Not for the last 20 years anyway. My guess is they’ll amend several times before they give up. In the meantime, theyll trumpet this in fundraising and campaigning and say they’d clearly win but-for corrupt and biased evil judges. It’s just playing to the base in the, ahem, basest way.

[Keldonric]

The suit’s already delivered the big “$15B defamation” headlines, fueled a round of stories, and handed them ready-made fundraising fodder. A token settlement would be gravy. A dismissal? Maybe even better — more “rigged system” proof to fire up supporters. Either way, you could hang a “Mission Accomplished” banner on it.

[Glaucomatose]

By my count, this is the third time in recent memory that Trump has sued the Times; the first two suits were both dismissed, and Trump was ordered to pay costs in one of them. I think the changes of a settlement are nil.

On the other hand, in the reporting I've seen of this latest suit there have been an endless stream of Go-Trump-get-those-librul-media-elites comments from Trump supporters, and so I agree with you that the primary motive here appears to just be the initial headlines themselves. When this case inevitably gets dismissed like all the others a few months from now, we'll already be onto some other outrage of the day, and in the meantime the Times will have incurred another half-million of legal costs, so it's all gravy for Trump.

[ReaderY]

Courts are great places for press releases. They guarantee free coverage of fundraising advertising that would be very costly otherwise. And this is true TWICE - once when filing the initial complaint, and again when denouncing the crazy treasonous Democrat judge who won’t follow the constitution, won’t respect Trump’s authority, and willfully denies what everybody knows to be the obvious truth about Trump’s greatness.

Moreover, if one can get to discovery, it provides a fabulous extra benefit, a great way to harass and gain intelligence about ones political enemies that can be used for more payback later and more fundraising in the meanwhile.

What’s not to like?

I don’t understand why Professor Benjamin would expect anything different. Courts, so long as they are still allowed to function and judges aren’t simply mob-rushed or assassinated one by one, provide a great way to encourage patriots and attack traitors. When the patriotic position prevails, one uses thr judge’s support as part of the cause. When treason rears its ugly head, one simply denounces the judge as a traitor to Fuehrer and Volk.

What other use for courts could there possibly be?

[ReaderY]

And this is why I think judges need to be upping the sanctions on obviously frivolous cases filed solely for purposes of fundraising and harassing and raising the costs of non-toadying media coverage. Many independent media companies are in extremely fragile financial condition. Unless strongly deterred these kinds of suits could be effective at their goal of deterring and possibly even breaking them through strategies designed to rack up their costs as much as possible, notwithstanding complete and obvious lack of objective.

These folks are simply not concerned with what law professors are trained to believe is the destination of a law suit. They are not here to win. They are here to solely use the legal process itself as a weapon. Their entire focus, the entire benefit to them, lies not in the destination, but in the journey.

[ReaderY]

Lack of objective legal merit.

[Jack Jordan]

ReaderY, definitely. Trump's complaint sounds like nothing more than what the Montana Supreme Court identified as "legal thuggery" in 2007.

[Thrax]

The point is likely to get NYT v. Sullivan before the current Court and ask them to overrule it. (I doubt this "lawsuit" would prevail even under a bare falsity standard, though.)

[ReaderY]

It seems to me that the Court would have no reason to do so. In order to reconsider NYT v Sullivan, you need a case with two features: the plaintiff would likely prevail under the newly announced standard if NYT was overruled, and (not unrelated), the plaintiff is sympathetic (and/or the defendant is unsympathetic) in a common-sense way, so that what the defendant did seems wrong and case’s facts provide a way to illustrate why the “actual malice” standard seems too high.

As you yourself explained, I don’t think a majority of the Justices will see either at work here. I think Mr. Trump’s case is sufficiently frivolous that If NYT v. Sulliven were overruled, I think the majority would find that the NYT would still win under any standard that would likely replace it. As you said even a bare falsity standard.

[loki13]

No. That's giving this far too much credit. This is a press release lawsuit that will get nowhere (unless it's just the opening salvo and we will see actual government action to try to extort the companies to pay tribute ... settle ...).

It doesn't pass the laugh test, and wouldn't be a plausible vehicle to overrule Sullivan.

(I would add that I still do not understand why this idea seems to have become a "thing" with some conservatives. Sullivan and its progeny provide a protective barrier for free speech, and as a policy matter protect robust public discourse from the rich and powerful. Ending Sullivan will just allow lawfare and protect the rich and privileged. But then again, I don't think people have actually thought this through.)

[ReaderY]

I think that’s an excellent point. Trump has shown that he can use the powers of the government to silence critics through a strategy that involves filing frivolous lawsuits and then using his power to make discretionary reguatoey and funding decisions to make trouble for them to coerce them to settle. This may be part of such a strategy.

[David Nieporent]

As one of my follows on social media noted, the difference is that the NYT, unlike Paramount/CBS or Disney/ABC, is solely in the news business. It doesn't have other interests to protect or other significant vulnerabilities to leverage, and its sole currency is its reputation as a news organization. If it took a dive to Trump the way those others did, it would kill the company.

[y81]

Plus the NYT readers (and potential readers) are strenuously anti-Trump. "Standing up to Trump" might well sell enough newspapers to pay the lawyers who defend this lawsuit.

[ah....Clem]

Ending Sullivan will just allow lawfare and protect the rich and privileged...

Heavens! It would be unprecedented for the Supreme Court issue a ruling that protects the rich and privileged. That's unpossible!

[David Nieporent]

It doesn't pass the laugh test,

What, you don't think, "These reporters said that Trump got lucky, but they knew they were lying because actually he was skilled" is a winning claim?

[neurodoc]

You mention "lawfare." Ironic isn't it that Trump and the Rs decry it while here we have him/them practicing the same so undeniably? Or is irony dead through over use and abuse?

[ReaderY]

I think the actual malice standard, as often applied in practice, actively promotes prudent disregard for the truth and under it, it is concern for the truth that is reckless behavior leading to liability exposure. Only those who conduct investigations can encounter facts contradicting what they say.

Consider the Iniversity of idaho professor who sued the psychic who intuited that she had murdered four Idaho students to cover up a lesbian affair. Because she was deemed a private figure, she won. But if she had been considered a public figure, and by the very low standard of many courts a university professor would be an ex officio public figure, I think the psychic woild in many jurisdictions have had an airtight defense. Relying exclusively on her psychic intuition and paying no regard to external facts, I think she had an airtight case that she could not possibly have encountered facts that might cause her to believe that her psychic intuition was false. Unlike the nebish who foolishishly investigates facts that might result in liability, the savvy operator who prudently avoids encountering any facts at all before letting loose is completely insulated from any liability at all.

Under actual malice, bullshit - statements made with complete lack of concern for their truth and made up without any investigation whatsoever - is completely protected by the constitution. Indeed, the bullshitter is greatly beloved by the first amendment; he alone receives its full embrace. Only lesser people who foolishly and recklessly concern themselves with facts have any possibility of being found liable, because only people who uncover facts of any kind can uncover facts contrary to their message.

[ReaderY]

I think the Supreme Court should do two things. First, it should get rid of actual malice and substitute something like gross negligence. There has to be some sort of positive duty to investigate. The complete bullshitter who conducts no investigation at all should stop being rewarded for not encountering any contrary facts. Second, the set of people who are regarded as public figures should be narrowed considerably.

[ah....Clem]

What are the chances that this gets to discovery and Trump has to be deposed? I'm thinking somewhere between "slim" and "none".

[Bored Lawyer]

There is nothing in the federal rules that requires a motion to dismiss. The defendant can always Answer and proceed to discovery.
If one has deep pockets and is looking to embarrass the plaintiff, that is always an option.

[ah....Clem]

Yes, but the plaintiff may file a Notice of Voluntary Dismissal if he doesn't like the way it's proceeding. My understanding is that it can get complicated from there, but the smart way to bet is that this suit gets dropped before Trump sits for a deposition.

[SykesFive]

I'm hoping it does go to discovery and Trump argues he's way too busy being president to sit for a deposition.

[David Nieporent]

Yes, but the plaintiff may file a Notice of Voluntary Dismissal if he doesn't like the way it's proceeding.

A plaintiff cannot unilaterally dismiss a case once an answer has been filed. It requires either a judge's approval or consent of the other side.

[ah....Clem]

Agreed. That's why I said "it can get complicated from there".

But just as a sufficiently motivated defendant will find a way to settle, so will a sufficiently motivated plaintiff.

[David Nieporent]

Come on. No sane person forgoes a motion to dismiss that he believes is likely to be successful because he thinks discovery is going to be so much fun. I mean, maybe Elon would do something like that (I said no sane person), but the NYT is an actual business.

[loki13]

One time (not at band camp) I saw a co-defendant's counsel try the "file an answer, and immediately move for a judgment on the pleadings" maneuver.

Personally, I don't recommend that as judges (IME) are really really annoyed by it. I had filed a motion to dismiss.

I never found out which was the better strategy, because it was a pro se plaintiff, and the judge ended up granting the MtDs (multiple defendants) with prejudice as well as the judgment on the pleadings ... but there was an extraneous crazy event by the pro se plaintiff that happened that likely had a strong influence on the action.

[John F. Carr]

A motion for judgment on the pleadings filed with the defendant's answer is judged the same as a motion to dismiss – the plaintiff's allegations are considered true and the defendant's allegations don't matter because they are not admitted. Why do such motions annoy judges?

[loki13]

They annoy judges (and IMO appellate courts) because they needlessly delay litigation, ESPECIALLY when they are just litigation gotchas filed on the first complaint, and (procedurally) they rarely work because they almost require the plaintiff to be asleep at the wheel.

Due to the liberality of amendment even after an answer, it is almost trivially easy to save a defective pleading through amendment. So a judge might reasonable question why you are doing this procedurally instead of either moving to dismiss (with prejudice) or, instead, answering and moving quickly for summary judgment.

I could explain further, but that's the gist.

[Zarniwoop]

I have some pity for the law clerks that have to meticulously read and analyze this for their judge. What a sheet and show of a complaint.

[David Nieporent]

It's a lot more interesting than reading an ERISA suit!

[Zarniwoop]

Heh, good point.

[Roger S]

If you were Trump's lawyer, and you had to write a paragraph about his TV show performance, would you portray him in a positive light? Of course you would.

[thesafesurfer]

Today's episode of Trump Derangement Syndrome.

[loki13]

Oh goodie! It's the most substance-free commenter and consistent Trump stan on the internet.

Why don't you explain to us, using big words and your legal expertise, the merits of this claim. Feel free to use relevant case law from either the district court where it was filed, or, preferably, the appellate court that governs (hint- you should know this).

We will wait! As always, we know that you are just ready to shower us with you legal acumen, as opposed to beclowning yourself with substance free yawps signifying your tribal identity.

[thesafesurfer]

Do you think the article is concerned with the "merits of the claim." Are you that obtuse? The article would have been a third of its length if it excluded TDS. The piece begins and ends with its central purpose, an attack on Trump personally. This is the exact definition of TDS, which your post contains in spades. So please, let it out before it consumes you.

[loki13]

Thank you for confirming that you just ascribe everything you do not understand to "TDS," as if it was a nervous tick or a bot-programmed macro. As I said, you are a substance-free commenter who only opens your mouth to change feet.

But to explain this in terms you will continue to refuse to understand- if you had half a brain (which would be a significant upgrade), you would see that this article is concerned with the "merits of the claim," but is focusing on a specific aspect of it- which you don't get, because you don't understand legal issues. Because you don't, you also don't understand why the people here are talking about why there are no "merits," and, further, what that actually means - in other words, why it might be considered "bad," for a sitting President to be filing civil lawsuits against companies- it would be arguably bad if the lawsuits had merit, and it's truly terrible when they are frivolous and have no merit.

But this is truly beyond you. I am sad for you. But that's okay- it's not going to stop you from lying to yourself.

*Again, to understand this you would have to understand what I mean when I say the sword and the shield. But you don't, so why bother. You can't teach a person who refuses to want to learn.

[thesafesurfer]

Stuart’s statement that “thanks solely to President Trump's sui generis charisma and unique business acumen” reads just like Adam Schiff’s fictionalize statements on the Ukrainian phone call. Pure, unadulterated TDS. You of course laughingly defend that as sophisticated legal reasoning beyond the conception of mere mortals.

You make the claim it is a bad idea for a sitting President to bring a civil suit. Why is that because will leave him open to legal counter attacks. You are obtuse if you think that the lunatic Left, that includes you, has ever needed an excuse for legal attacks on President Trump. Just look at the concocted cases brought by Democrats, the Bragg/Merchan Hush Money debacle, the Fanny Willis Georgia Election RICO case, the Jack Smith Election Subversion case, the Jack Smith Classified Documents case, the Letitia James Civil Fraud case, and finally New York state changing the statute of limitations to allow the E. Jean Carroll lawsuit. How does this filing change in any way the legal woes Trump faces from the Democrat Left.

No doubt you think the American people legally ignorant because they completely ignored the legal establishments findings Trump and voted for a “convicted felon.”

How about the Left’s characterization of Trump and his supporters as Fascists, Hitlerian, Supremacists, Maga, etc. etc. and then denying that the demagoguery leads to violence as an example of your own sword and shield problem.

Keep letting out your TDS before it consumers you.

[Scribe]

We have the Supreme Court to thank for this: Twombley and Iqbal, to name a couple. Took the old "notice pleading" of a "short, plain statement" and flopped in its place the even older "fact pleading" that has to be judged "plausible" by the court before it proceeds. (Don't ask me how that gets around the 7th Amendment letting the judge, not a jury, decide what is, or is not, plausible.)
Now, lawyers have to throw the kitchen sink, and all the plumbing, too, into their complaint. Back in the late 80s, still a clerk in a law office learning the trade, my boss had me do a fact pleading in a contract case - a construction project gone wrong. At the initial management conference the judge told him to cut 2/3 out of it, or else. Would that the Supremes hadn't made a mess out of things with Twombly, Iqbal and the like.

[David Nieporent]

This pleading was not drafted this way because of Twiqbal. It was drafted this way because it's about entertaining Trump and stroking his ego. I am a big fan of Twiqbal, but it just requires pleading some facts, rather than pure conclusory legal allegations.

[loki13]

I don't even understand what you are saying here.

You are mangling three different standards. There is notice pleading that was introduced with the FRCP (1938) but was really set down in 1957 (Conley v. Gibson).

There's Iqbal/Twombly (2007 & 2009), which is still notice pleading, but is heightened notice pleading (plausibility and specificity).

Then there is fact pleading- which can be thought of as "code pleading" (the style that started in NY in the mid-1800 that abolished the difference the distinction between law and equity on federal court that was abolished by the FRCP) and, um, "fact pleading" which is still the minority rule in the states, but is not (in practice) the heightened standard of code pleading.

As a matter of practice, I'm of the opinion that the Iqbal/Twombly standard and the as-applied fact pleading standard are pretty similar. And given the liberality of amendment and actual observed experience, it's not like getting rid of pure notice pleading in federal courts has removed the ability of people to file frivolous and meritless claims.

[Scribe]

Oh, yeah. I don't see the point of Trump suing the NYT for $15 billion, when its market cap is about $9 billion.
He should buy it and either shut it down or reorganize it into a respectable news organization. That'd be a new thing for that label....

[Jett's Pop]

This post makes a fundamental error about the law. It is true that the legal definition of "actual malice" is not ill will or hatred. But that doesn't mean that ill will or hatred is *irrelevant* to the question of "actual malice." In Palin v. NY Times, the Second Circuit thought it relevant that the NYT editor was the brother of a Democratic senator from Colorado, and thus might have some motive to make Palin look bad. I suspect Trump's lawyers are aware of that.

[ReaderY]

Read the complaint. I sincerely hope for his lawyers’ sakes that Mr. Trump used lube. CYA they most definitely did not, and then some.

[Squire Al]

In a normal legal world, the Complaint would be dismissed and the lawyers that signed it would be disciplined for filing a frivolous lawsuit. But, we no longer live in that normal world.

Trump has developed an extortion racket where he files or threatens these lawsuits and then uses the powers of the Presidency, upgraded by the notion of the unitary executive to direct all possible actions, i.e the FCC, FTC, Dept. of Justice, etc., to take or threaten actions that will harm the Defendants in unrelated ways. They then settle these cases (ABC News, Paramount, various law firms, various Universities) either for significant sums or by agreeing to kiss the ring in the future.

These are not new tactics. Years ago threatening actions for racial discrimination became an industry led by Johnny Cochran and others. that's the trouble with this kind of legal abuse. Once the process is established, unless Judges move quickly to stop it through dismissing cases quickly and through sanctioning bad actors, it just grows and grows. Trump is just the most recent to latch on to this technique.

Why should he stop since it has been working?

[loki13]

I mean, let's not forget that he sued the WSJ for $10 billion claiming that they falsely reported about a birthday card.

It's all bullshit, all the way down. Of course, this is how he conducted himself in business, too. The only difference now is that he can sic the government on people while he litigates.

[David Nieporent]

In the past — in his pre-politics past, I mean — he has admitted that he filed defamation suits knowing they'd be tossed, just to harass his targets. (Of course, back then he was minimally savvy enough to know not to say that during the pendency of the litigation, to avoid sanctions. Instead, he waited until after the case was tossed to say, "Yeah, I knew that would happen.")