The Volokh Conspiracy
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President Trump's Defamation Claim Against BBC Can Go Forward
From today's decision by Judge Jeffrey Kuntz (S.D. Fla.) in Trump v. BBC:
In Trump v. CNN (S.D. Fla. 2023), aff'd (11th Cir. 2025), Judge Singhal concluded that "the complained of statements are opinion, not factually false statements, and therefore are not actionable." In Trump v. Dow Jones & Co., Inc. (S.D. Fla. 2026), Judge Gayles dismissed President Trump's claims that the Wall Street Journal failed to adequately investigate claims it reported.
Those cases involved a news entity reporting on a story. Here, the news entity created the story. BBC admitted as much by confirming it had edited a video to make it appear as though President Trump made a statement he never made.
And it acknowledged it chose to release the video in a documentary only a week before the 2024 Presidential Election, at the time it would have the most impact. To make sure it was seen in Florida, BBC even emailed U.S. and Florida based commenters with instructions to on how to view the documentary.
Whether President Trump can prove these claims and establish he sustained damages at summary judgment or trial is left for another day. For now, after careful review, and being otherwise fully advised, BBC's Motion to Dismiss is granted [as to the defamation claim] ….
On October 28, 2024, one week before the 2024 Presidential Election, BBC broadcast a documentary titled "Trump: A Second Chance." In the Documentary, a twelve-second segment portrayed President Trump giving a speech to his supporters on January 6, 2021:
We're going to walk down to the Capitol and I'll be there with you. And we fight. We fight like hell and if you don't fight like hell, you're not going to have a country anymore.
This two sentence, twelve-second segment, represents the core of Trump's complaint. However, the issue with the statement is that Trump never said it. The above statement is actually two parts of a speech spliced together. Instead, the first remarks that Trump made were:
Now it is up to Congress to confront this egregious assault on our democracy. And after this, we're going to walk down and I'll be there with you. We're going to walk down, we're going to walk down. Anyone you want but I think right here, we're going to walk down to the Capitol and we're going to cheer on our brave senators and congressmen and women, and we're probably not going to be cheering so much for some of them.
Nearly fifty-five minutes later, Trump continued:
[B]ut I said 'Something's wrong here, Something's really wrong, can't have happened.' And we fight, we fight like hell, and if you don't fight like hell, you're not going to have a country anymore.
Additionally, less than a minute later, Trump told his supporters to peacefully walk to the Capitol, stating:
I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard[.]
It is those two statements, edited and spliced together, that form the alleged defamatory twelve-second segment that aired in the Documentary. BBC admits Trump never made the statements as aired. The Chairman of BBC apologized to Trump, stating that the BBC "editing unintentionally created the impression of a single continuous section of your speech, rather than excerpts from different points in the speech." This, the BBC chairman stated, "gave the mistaken impression that you had made a direct call for violent action. That was an editorial error and it should not have happened." …
The court concluded that President Trump had adequately alleged actual damages and "actual malice" (i.e., knowing and reckless falsehood) on BBC's part, though of course the court noted that both would still have to be proved eventually as a factual matter. An excerpt:
For purposes of the defamation test, ill-will is different from actual malice. An intention to portray a public figure in a negative light, even when motivated by ill-will or evil intent, is not sufficient to show actual malice unless the publisher intended to inflict harm through knowing or reckless falsehood. However, ill-will or motive, when combined with other evidence, may be taken into account for actual malice….
Here, Trump alleges that BBC has a history of unfair or improper coverage toward him. In addition to the Documentary itself, Trump highlights the Prescott Memorandum, a 2022 BBC Newsnight episode, and the "2024 BBC News Shooting Hoax." As an important reminder, the state of mind required for actual malice must be "brought home" to the person in the BBC's organization responsible for the publication of the Documentary. This principle is relevant as it relates to the 2022 Newsnight episode and the 2024 "Shooting Hoax." Again, Trump has not alleged that either of these incidents involved the creator(s) of the Documentary. That said, these incidents are not merely portrayal in a negative light, but examples of BBC playing fast and loose with the factual accuracy of their media content. With respect to the Newsnight episode, the BBC seemingly did not care about the falsity of the portrayal until the later Documentary became an issue. Such examples can be said to be probative of BBC's state of mind as it pertains to recklessness in light of BBC's non-action toward false statements about Trump.
Thus, Trump paints a picture that demonstrates the BBC has a record of allowing the publication of false statements in their portrayal of Trump. BBC asks the Court to put on blinders and treat the Panorama team as if they were blocked off from the rest of the organization, ignorant of everything else going on at BBC. At this procedural stage [i.e., a motion to dismiss, where plaintiff must merely plausibly allege facts that could lead to liability, rather than proving them -EV], the Court simply cannot ignore the circumstantial evidence presented. To do so would make it extremely difficult to ever prove a defendant's subjective state of mind in any defamation case….
Trump alleged that BBC's editing of the speech was an "intentional and malicious effort to falsely and deceptively portray President Trump as having called for violence." In support, Trump alleges that it "would have been impossible for BBC's journalists and producers to splice together two distinct parts of the [s]peech from nearly fifty-five minutes apart unless they were acting intentionally." On its face, the editing may independently establish the plausibility of actual malice. BBC tries to frame this editing as ordinary editing done to condense a seventy-minute-long speech into twelve seconds. But the Court is not persuaded.
Editing is often required. However, given the time disparity between the two statements, the distance itself tends toward a plausible inference that BBC knew or should have known that the segment they were creating would not and could not have been a truthful statement. This was not trimming around the edges but creating something different than what was stated in the speech. BBC also had the entire speech available to them for nearly three years by the time of the Documentary.
In addition to the editing itself, BBC's Chairman issued an apology:
The way the speech was edited in the documentary gave a misleading impression of what you said. The editing unintentionally created the impression of a single continuous section of your speech, rather than excerpts from different points in the speech. This gave the mistaken impression that you had made a direct call for violent action. That was an editorial error and it should not have happened.
However, the BBC now appears to disagree with the apology issued by the Chairman. BBC's Chairman admitted that the documentary gave a misleading and mistaken impression that Trump made a direct call for violent action. Strangely enough, BBC strays from that position in the Motion to Dismiss, referring to statements made by January 6 defendants as evidence that the speech may be interpreted as a call to violent action. But BBC's own Chairman acknowledged the editing was misleading in his letter to Trump….
As a final matter on the issue of actual malice, Trump alleges that BBC strayed from accepted standards of journalistic integrity. Such a claim on its own would not amount to actual malice, since actual malice requires "more than a departure from reasonable journalistic standards." A failure to investigate, standing on its own, does not indicate the presence of actual malice. To show actual malice, there must be some showing that the BBC purposefully avoided further investigation with the intent to avoid the truth.
BBC first argues that allegations BBC failed to contact Trump for comment before publishing are insufficient to establish actual malice. On this point, the Court agrees.
BBC then argues that allegations that BBC omitted portions of Trump's speech are also insufficient to establish actual malice. Alterations of quotes that "materially alter" the meaning of Trump's statements could support a finding of actual malice…. BBC did not just alter the quote but created a new quote by splicing two statements together and passing them off as a single continuous sentence. To the extent that there was no material alteration to the meaning of Trump's speech, that simply cannot be the case. The Chairman's letter makes it very clear that BBC acknowledges there was a material change of meaning when they edited the speech to create a single continuous segment that did not exist.
BBC then argues that the apology "militates against a finding of actual malice." … Today, retractions can be issued near instantaneously for online publications thanks to the internet. The Court acknowledges that media entities, like The Washington Post, or BBC, are not perfect, and make mistakes. However, it cannot be said that a retraction the next day is in the same ballpark as a retraction over a year later, and only after being threatened with legal action. The temporal distance here makes the retraction a weak indicator as to BBC's state of mind at the time of publication.
Further weakening BBC's argument, BBC was aware that such editing created a false impression as early as 2022. Former Acting White House Chief of Staff Mick Mulvaney, in relation to the 2022 Newsnight episode, stated on-air: "Your video actually spliced together the presentation.… [Y]our video makes it look like those two things came together." As BBC's own Clive Coleman stated "[t]he first lesson … you're taught as a broadcast journalist is that you do not joint two bits of footage together from different times in a way that will make the audience think that it is one piece of footage." Considering these facts, BBC's ultimate retraction in 2025 reads less like a readiness to retract, and more like a reluctance to retract.
The Court acknowledges that events from 2022 do not directly bear on the state of mind at the time of publication. But neither does a retraction over a year after publication. Hence why courts are often reliant on circumstantial evidence when making state of mind determinations. Still, Trump's allegations regarding BBC's departure from journalistic standards are more than enough to plausibly alleged more than mere negligence….
Of course, all of this does not prove BBC acted with actual malice. But it does make it plausible. And Trump need only allege facts sufficient to give rise to a reasonable inference that the BBC edited and published the Documentary "with knowledge that it was false or with reckless disregard of whether it was false or not." Trump has done so here….
And the court held the BBC's statement could be viewed as a false factual allegation, rather than merely "convey[ing] an opinion of what the audience understood Trump to say":
As Trump correctly points out, a spliced segment that creates a sentence that Trump never spoke represents the exact kind of false statement of fact that courts hold as the sine qua non for recovery in defamation. Whether the audience "reasonably interpreted" the segment to convey that Trump called for violence is irrelevant….
The court also held that Florida courts (including the federal courts) had jurisdiction over the BBC. But the court rejected Trump's Florida Deceptive and Unfair Trade Practices Act claim:
… FDUTPA is limited to acts "in the conduct of any trade or commerce." The statute defines this as "the advertising, soliciting, providing, offering, or distributing" of goods, services, property, "or any other article, commodity, or thing of value." … "[M]agazines and newspapers often have commercial purposes, but those purposes do not convert the individual articles within these editorial sources into commercial speech." Both advertising and subscriptions are typical features of newspapers, whether online or in-print. Even if BBC has commercial purposes, that does not convert the Documentary into commercial speech….
Alejandro Brito, Ian Michael Corp, Jalaine Garcia, and Michael O. Mena (Brito, PLLC), Daniel Epstein (Epstein & Co.), Edward Andrew Paltzik (Tylor Dykema) represent Trump.
