Actually, he hasn’t sued them yet, but his lawyers have announced an intent to sue CNN, and cases against other media outlets are said to be waiting in the wings. Trump’s lawyers, a D.C. firm called Ifrah Law, wrote to CNN on July 21, giving notice of their intent to bring a defamation case under Florida law. The lawyers’ letter, with exhibits, is long, but its point is simple.
The letter says that CNN defamed Trump more than 7,000 times by accusing him of “lying” when he said that he thought the 2020 election was rigged, or stolen. But that is what Trump honestly believes:
President Trump harbors a subjective belief that he was unfairly deprived of a second term in office. This is particularly valid in the context of an incumbent president receiving over 74 million votes, a record number for any republican candidate in history.32 By refusing to acknowledge President Trump could be correct or that he could genuinely believe his contention is correct, CNN has willfully acted in disregard for the truth and has acted with reckless disregard for the truth. CNN’s relentless and willful campaign to brand President Trump a “liar” and purveyor of the “Big Lie” is defamatory in nature.
Without regard for President Trump’s genuine belief in his statements, CNN has published numerous articles characterizing him as a “liar” and the purveyor of the “Big Lie.”
Trump’s lawyers are right. If Trump believed what he said, he could have been wrong (although many millions of Americans agree with him, as the letter points out), but he isn’t lying.
The letter makes out a good, detailed case of journalistic malpractice and bias. But do CNN’s actions constitute actionable defamation? The conventional wisdom is that under current law, it is almost impossible for any public figure to win a defamation case. And if it is almost impossible for anyone, it is triply impossible for Donald Trump.
The problem is that the “actual malice” standard, like the standard for whether someone is lying, is subjective. Reporters can be wrong all day long, and their reporting may be politically motivated and malicious–i.e., motivated by hatred–but if they are writing about a public figure like Trump, they can’t just be wrong and hateful. They have to be lying. The plaintiff must show that they knew that what they said or wrote was false, or likely false, and said it anyway.
So CNN will argue, first, that whether Trump lied is a matter of opinion, not fact, and therefore they can’t be liable. They likely will win on that ground. They then will go on to say, in any event, our reporters and editors had a subjective belief that Trump was lying, just like Trump had a subjective belief that the election was stolen. Thus there can be no actual malice. So in a sense, CNN’s defense is a mirror image of Trump’s claim.
Under existing law, I don’t see Trump’s claims going far. Others who disagree might weigh in in the comments.
What I would really like to see is discovery on Trump’s claims. Wouldn’t it be interesting to see a few years’ worth of emails and texts among CNN employees, and employees of other news organizations who may also be sued, where they talk about their efforts to destroy Donald Trump? And perhaps acknowledge that, while they disagree with him, Trump is honestly stating his views of the 2020 election? The letter from Trump’s lawyers demands that CNN preserve all relevant electronic and physical documents for discovery purposes.
Of course, CNN will fight discovery tooth and nail. Their strategy will be to engage in motion practice for months and years, based on the opinion defense and whatever else they come up with. They want to write legal briefs until no one cares anymore, not to turn emails and memos over to hostile lawyers. How this plays out will depend on the Florida judge, I assume a federal judge, who winds up with the case.
Finally, I note that the D.C. firm representing Trump is tiny. They might be an excellent boutique firm, I don’t know. But whether they have the capacity to handle this kind of litigation, especially if Trump sues multiple media outlets, is doubtful.
But hope springs eternal. I wish Trump success in whatever lawsuits he brings.
Via PJ Media.