Is it possible that my ol’ friend Walt is working for the Trump campaign now? Nah, can’t be. But the logic behind the Trump campaign’s defamation lawsuit against CNN has a familiar ring: like the protracted defamation suit against me by an aggrieved (and banned) Ethics Alarms commenter, the Trump campaign is claiming that opinion in the news media constitutes defamation, and it does not, must not and cannot. Writes Professor Turley in part:
We have previously discussed President Donald Trump’s repeated calls for changing libel laws and suing his critics, particularly the New York Times. His campaign brought such a defamation lawsuit against the New York Times recently for allegedly publishing false claims in an op-ed written by Max Frankel on March 27, 2019, entitled “The Real Trump-Russia Quid Pro Quo.” As in this case, the selection of an opinion piece made that case especially difficult to litigate and again raises questions of the motivation behind the litigation.
The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures.
The campaign must prove that the defendant had “actual malice” where it had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false. That is the standard that Trump dislikes because it insulates the media from the threat of litigation. Most of the stories that Trump has railed against would not be actionable under this standard. However, Trump seems to be relishing the idea of bringing financial pressure on the media through litigation — the very goal of Sullivan and his contemporaries to bring the media to heel.
Notably, the complaint tries to establish malice by referencing the investigative stories of Project Veritas footage featuring Nick Neville, a Media Coordinator at CNN. In the videotape, Neville states that CNN’s chief executive, Jeff Zucker, has a personal vendetta against the
President. There is no question that Zucker has rebranded CNN as an anti-Trump network in the age of echo-journalism. Hosts are often unrelenting in their attacks on the Administration……I have been a critic of the CNN coverage for years, which I view as openly hostile and biased. Despite my respect for individual CNN hosts, I agree with the critics that much of the coverage shows a consistent and fragrant advocacy against Trump. However, that does not answer the question over defamation, particularly in dealing with an opinion piece. Such commentary fall squarely within the core of protected speech under the first amendment.
Yecchh…basing a lawsuit on one of the Project Veritas ambush videos? The Trump campaign’s lawsuit isn’t technically frivolous, because it is, at least colorably, based on a good faith effort to change the very law that will get it dismissed. The Trump administration would lovelovelove to see Sullivan overturned. That’s not happening, however, because the death of that case would be the death of the First Amendment as we know it. Ethics Alarms has been as critical as anyone of the current journalism establishment’s migration to the dark side and abandonment of its duties of objectivity, competence and fairness. Nonetheless, in order to have enough liberty it is necessary to have to much, as my favorite Clarence Darrow quote reminds us. I have no problem with the President attacking the news media for its fake news and relentless efforts to undermine his Presidency, but attempting to punish journalists and pundits for their Constitutionally protected bile will just trigger more columns about how the President is emulating Hitler.
Or John Adams. Or Abraham Lincoln.