The Volokh Conspiracy
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Eleventh Circuit Rejects Trump's Defamation Lawsuit Over CNN 2022 "Big Lie" Statement
President Trump "complained that, by using the phrase 'Big Lie' to describe his claims about the 2020 presidential election, CNN defamed him."
From Trump v. CNN, Inc., decided today (correctly, I think) by Judges Adalberto Jordan, Kevin Newsom, and Elizabeth Branch:
In 2022, Plaintiff-Appellant Donald J. Trump filed a defamation suit against Cable News Network, Inc. (CNN). He complained that, by using the phrase "Big Lie" to describe his claims about the 2020 presidential election, CNN defamed him….
To be clear, CNN has never explicitly claimed that Trump's "actions and statements were designed to be, and actually were, variations of those [that] Hitler used to suppress and destroy populations." But, according to Trump, this assertion is implied in CNN's use of the phrase "Big Lie." Further, he argues, the phrase "could reasonably be interpreted … by facets of the CNN audience as accusations that [Trump] is doing exactly what the historical record shows [that] Hitler did in his monstrous, genocidal crimes against humanity." And, the argument goes, these accusations are false statements of fact because Trump did not do exactly what Hitler did. Hitler engaged in a monstrous genocide; Trump "exercis[ed] a constitutional right to point out concerns with the integrity of elections."
Trump's argument is unpersuasive. First, although he concedes that CNN's use of the term "Big Lie" is, to some extent, ambiguous, he assumes that it is unambiguous enough to constitute a statement of fact. This assumption is untenable. Although we haven't squarely addressed the point, case law from other circuits is persuasive. In Buckley v. Littell (2d Cir. 1976), the Second Circuit held that, by using the terms "fascist," "fellow traveler," and "radical right" to describe William F. Buckley, Jr., the defendant was not publishing "statements of fact." Buckley, 539 F.2d at 893. Rather, the court ruled, the terms were "so debatable, loose and varying[ ] that they [we]re insusceptible to proof of truth or falsity." Similarly, in Ollman v. Evans (D.C. Cir. 1984), the D.C. Circuit held that when the defendant called the plaintiff "an outspoken proponent of political Marxism," his statement was "obviously unverifiable."
Trump argues that the term "Big Lie" is less ambiguous than the terms "fascist," "fellow traveler," "radical right," and "outspoken proponent of political Marxism." But he does not explain this assertion. If "fascist"—a term that is, by definition, political—is ambiguous, then it follows that "Big Lie"—a term that is facially apolitical—is at least as ambiguous.
Second, Trump's argument hinges on the fact that his own interpretation of his conduct—i.e., that he was exercising a constitutional right to identify his concerns with the integrity of elections—is true and that CNN's interpretation—i.e., that Trump was peddling his "Big Lie"—is false. However, his conduct is susceptible to multiple subjective interpretations, including CNN's. As we held in Turner, one person's "subjective assessment" is not rendered false by another person's "different conclusion." In Turner, the defendants stated that, on at least one occasion, the plaintiff, James Turner, offensive line coach of the Miami Dolphins, participated in the "homophobic taunting" of one of his players. Turner argued that this statement was false because his conduct was a "harmless 'joke,' as opposed to homophobic taunting." We rejected his argument, concluding that the statement "[wa]s the [d]efendants' subjective assessment of Turner's conduct and [wa]s not readily capable of being proven true or false."
Just as the Turner defendants described Turner's conduct as "homophobic taunting," CNN described Trump's conduct as his "Big Lie." Just as Turner viewed his own conduct as a "harmless 'joke,'" Trump viewed his own conduct as the exercise of a constitutional right. As in Turner, so too here. CNN's subjective assessment of Trump's conduct is not readily capable of being proven true or false.
Trump has not adequately alleged the falsity of CNN's statements. Therefore, he has failed to state a defamation claim….
Eric P. Schroeder and Brian M. Underwood, Jr. (Bryan Cave Leighton Paisner LLP) and George S. LeMieux and Eric C. Edison (Gunster, Yoakley & Stewart, P.A.) represent CNN.
