Fake News, as a Matter of Law? Trump Brings CNN Feud to the Courts in Defamation Suit

Fake News, as a Matter of Law? Trump Brings CNN Feud to the Courts in Defamation Suit

After years of fireworks with CNN, one of the country’s foremost media outlets,^[1] former President Donald Trump brought a $475 million defamation lawsuit against the network on October 3 in the Southern District of Florida.^[2] The Trump team sent a notice to CNN in July 2022 of the impending action.^[3] In a response to the letter, CNN declined to comply with demands for the company to remove and retract 34 allegedly defamatory articles and television segments, and to stop characterizing Trump’s statements about the 2020 election as “lies.”^[4] The network also argued that Trump has “not identified a single false or defamatory statement in [his] letter.”^[5]

Trump’s action centers on CNN’s alleged portrayal of Trump’s election-related statements known collectively as “The Big Lie,” a reference to propagandistic tactics espoused by Adolf Hitler, as well as to CNN’s alleged comparison of Trump to Hitler and Nazis generally.^[6] Examples of CNN’s several statements cited by the complaint include a July 2021 article’s commentary that, “One can only hope that Trump was unaware that his quote was a near-replication of this infamous line from Nazi Joseph Goebbels: ‘If you tell a lie big enough and keep repeating it, people will eventually come to believe it,’”^[7] and a psychiatrist’s claim on CNN’s program “Reliable Sources” that “Trump is as destructive a person in this century as Hitler, Stalin, and Mao were in the last century.”^[8] Altogether, the complaint alleges that CNN has used the “big lie” phrase as related to Trump over 7,700 times since January 2021.^[9] Citing^[10] claims of both defamation per se (constituting statements which are considered facially defamatory and for which damages need not be proven)^[11] and defamation, Trump seeks both compensatory damages to be decided at trial and punitive damages of $475 million.^[12]

The elements of defamation under Florida law are as follows: “(1) publication; (2) falsity; (3) [the] actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) [the] statement must be defamatory.”^[13]

The “falsity” element may present a considerable challenge; many of CNN’s allegedly defamatory statements may qualify as merely opinions, which courts do not deem “false” under defamation law.^[14] However, the Constitution does not protect “mixed expressions of opinion,” which “[are] based upon facts regarding a person or his conduct that are neither stated in the publication nor assumed to exist by a party exposed to the communication. Rather, the communicator implies that a concealed or undisclosed set of defamatory facts would confirm his opinion.”^[15] Notably, former Trump attorney Alan Dershowitz’s defamation claim against CNN concerning the network’s framing of his arguments during the President’s 2020 impeachment trial relied on this principle and survived a motion to dismiss in 2021.^[16] Additionally, Judge Raag Singhal, appointed by Trump, is presiding over both cases.^[17]

Of course, the fact that the former president is a public official also presents a significant challenge, i.e. the need to show that CNN acted with “knowledge or reckless disregard as to the falsity” of its statements^[18] (also known as “actual malice”),^[19] rather than merely show that CNN acted “negligently” (the standard regarding statements about private persons).^[20] Backed by the First Amendment, the “actual malice” standard represents a very difficult hurdle for plaintiffs; for instance, it has been over 50 years since the New York Times has lost a defamation case.^[21] However, it should again be noted that the Dershowitz case progressed beyond a motion to dismiss, and thus sufficiently pled actual malice at that early stage.^[22] Although to survive a motion to dismiss in federal court Dershowitz only needed to plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’”^[23] and not meet the more stringent trial burden of “more probable than not,” the suit’s progression was still a significant step forward.^[24] As a counterpoint, the CNN statements in the Dershowitz case focused on specific legal arguments made by Dershowitz during the impeachment trial, potentially making that case more cleanly subject to a defamation analysis than a case concerning some of CNN’s sweeping, vague statements about President Trump.^[25]

Even if this suit is unsuccessful, it is worth noting where it might fit within the broader trend of the “actual malice” standard, which has existed for 58 years.^[26]  In light of an evolving media landscape and growing concern about disinformation, Justices Clarence Thomas and Neil Gorsuch have expressed skepticism about the high level of protection from liability that media defendants enjoy.^[27] In a dissent from the Supreme Court’s denial of certiorari in a 2021 defamation case, Thomas argued a lack of constitutional backing for the “actual malice” standard,^[28] presented past examples of particularly harmful disinformation (including the online “Pizzagate” conspiracy theory which implicated Hillary Clinton and others in an alleged pedophilia ring at a pizza shop and led to a shooting there),^[29] and declared that, “Public figure or private, lies impose real harm.”^[30] Gorsuch added, “It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy”^[31] and noted how the ease of achieving notoriety in today’s social media environment exposes a potentially unfair number of plaintiffs to legal characterization as public figures and the corresponding “actual malice” standard.^[32]

Trump’s lawsuit attacks the standard as well:

 “Even though the actual malice standard is met here, in circumstances like these, the judicially-created policy of the ‘actual malice’ standard should not apply because ‘ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.’”^[33]

Moreover, “[actual malice] does not—and should not—apply where the media defendant is not publishing statements to foster debate, critical thinking, or the ‘unfettered interchange of ideas’ but rather seeks to participate in the political arena by offering propaganda.”^[34] While Trump’s reasons for disposing of actual malice, particularly the idea of repression of thought due to “ideological homogeneity in the media,”^[35] do not quite map to the concerns of Thomas and Gorsuch, they represent another effort to uproot a standard of fault for defamation lawsuits which has stood for decades.

Whether due to the notoriety of the parties involved, the legal challenges Trump faces weighed against a potentially favorable venue, or the implications for the broader fight against the “actual malice” standard, the former president’s action against his primary media nemesis should be of significant interest in the foreseeable future.