The Volokh Conspiracy
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No Discovery into Alleged "Actual Malice" in Trump's Lawsuit Against WSJ Over Jeffrey Epstein Birthday Letter Story
From Trump v. Dow Jones & Co., decided Wednesday by Judge Darrin Gayles (S.D. Fla.):
On July 18, 2025, President Donald J. Trump filed his Complaint … for defamation based on an article in the Wall Street Journal … linking President Trump to convicted sex offender Jeffrey Epstein. On April 13, 2026, on Defendants' motion, the Court dismissed the Complaint without prejudice based on President Trump's failure to plausibly allege that Defendants acted with actual malice …. [See this post on the dismissal. -EV]
On April 14, 2026, President Trump filed the Motion, requesting leave to conduct limited discovery on (1) "[h]ow each Defendant acted with actual malice"; (2) "[h]ow Defendants purposefully avoided the truth of the statements at issue"; and (3) "[h]ow Defendants allegedly obtained the letter and supposedly verified its contents, including Plaintiff's signature." …
"As the Supreme Court has noted, … the doors of discovery do not unlock for a plaintiff armed with nothing more than conclusions." "Rather, discovery follows 'the filing of a well-pleaded complaint. [Surely,] [i]t is not a device to enable the plaintiff," like President Trump here, "to make a case when his complaint has failed to state a claim.'"
Moreover, President Trump's request to conduct discovery on issues related to actual malice before filing a well-pleaded complaint contravenes the purpose behind the actual malice standard. As detailed in the Dismissal Order, in defamation cases involving a public figure plaintiff:
[T]here is a powerful interest in ensuring that free speech is not unduly burdened by the necessity of defending expensive yet groundless litigation. Indeed, the actual malice standard was designed to allow publishers the "breathing space" needed to ensure robust reporting on public figures and events. Forcing publishers to defend inappropriate suits through expensive discovery proceedings in all cases would constrict that breathing space in exactly the manner the actual malice standard was intended to prevent. The costs and efforts required to defend a lawsuit through that stage of litigation could chill free speech nearly as effectively as the absence of the actual malice standard altogether.
Michel v. NYP Holdings, Inc. (11th Cir. 2016) (quoting New York Times v. Sullivan (1964)). Thus, allowing President Trump to conduct discovery on actual malice, where his initial attempt at pleading a defamation claim fell short, is exactly the type of "expensive yet groundless litigation" the Eleventh Circuit has cautioned against.
Amanda B. Levine, Katherine M. Bolger, and Meenakshi Krishnan (Davis Wright Tremaine LLP), Andrew J Levander and Steven A. Engel (Dechert LLP), and Eric Corey Edison, George S. LeMieux, and Timothy John McGinn, Jr. (Gunster Yoakley & Stewart, P.A.) represent defendants.
