Trump says calling his lies about 2020 election results ‘the big lie’ is defamation
From oh baby Department
Donald Trump, whose supporters still pretend to be a “free speech” champion, has been known to regularly prosecute news organizations that are mildly critical of him. You might remember that in 2020 he hired the infamous-lawyer-for-suing-media-companies (yes, he was once a lawyer in a case against us), Charles Harder, and sued both the NY Times and The Washington Post filed. The NY Times case was easily dismissed. The Washington Post case appears to be somehow still alive, although not much has happened in a while. Initially, it was assigned to Judge Ketanji Brown Jackson, who has since received two separate promotions, which removed him from the case. Somewhere along the way, Harder dropped the case and was replaced by Harmeet Dhillon, who has always been a favorite advocate of the suffering culture warriors.
Now Trump is again threatening to prosecute media organizations – but not through Harder or Dhillon. Instead, he has hired James Trustee of the former prestigious Ifra law firm in DC to threaten CNN with a defamation lawsuit… for calling Trump a liar. The threat letter is all kinds of nonsense, but the underlying original claim undermines the logic of the lawsuit. It claims you can’t call Trump a liar because he believes everything he says.
In this instance, President Trump’s comments are not a lie: he believes subjectively that the results of the 2020 presidential election turned into bogus voting activity in several major states.
Yeah, so here’s the thing: Given that it’s subjective whether or not he’s lying, that means it’s an opinion. And an opinion is not defamation. are statements of fact only. So, we’re already off to a bad start.
But, more importantly, for the most part, calling someone a liar isn’t defamatory. There are many cases where it has been tried. And mostly fail. A few years ago, there was an interesting law review article tracing the history of the “defamatory effect” of calling someone a “liar.” and it was found that the cases are going back centuries Those who say that calling someone a liar is not defamatory. Again, this is not to say that this is universally the case, but in the rare cases where the word “false” was found to be defamatory, it usually has some very specific characteristics that lead to something more nefarious – or, more generally, specific. reflect some level of knowledge, rather than merely comment on publicly available information.
This is… not that.
Perhaps the most famous case on this question is Milkovich’s, it sets more or less modern standards (though some have argued that they are a bit convoluted) in determining what counts as defamation and what doesn’t. This requires that the claims be specific rather than “loose, figurative, or exaggerated.” But the references cited in this threat letter are very clearly opinionated, rhetorical, or rhetorical speech.
And he is not even reaching the question of truth.
Whether or not Trump “believes subjectively” isn’t really the issue. CNN journalists may subjectively believe that he is lying. And to say so is his opinion – which is not defamatory.
And it’s not even touching the question of genuine malice.
Donald Trump is a public figure. A very public figure. To win a defamation suit, he must prove genuine malice. And as we’ve said many times before, that doesn’t mean “CNN hates Trump.” That means Trump has to prove that CNN knew or at least highly suspicious That Trump was not lying. And, um, that’s not going to happen.
Perhaps there is some statement in the 282 page (?!?!?) threat letter (with display…) that might meet the definition of defamation somehow, but if it were, you would think that Super Lawyer James Trusty, you Know, lead with that, and don’t lead a defamation claim to call Trump a liar because he actually believes the liars he says.
Either way, it’s laughable. And shame on both the trustee and Trump.
As noted above, CNN has used the phrase “big lie” or is estimated to portray President Trump as lying about 7,700 times during broadcast television shows and repeats of those shows. These defamatory comments continue even after CNN’s new CEO apparently urged the production teams to shut down.
Accordingly, on behalf of President Donald Trump, I hereby demand that CNN (1) immediately remove the false and defamatory publications, (2) immediately issue a full and fair retraction of the statements identified herein as if they were the original were explicitly published. , and (3) immediately cease and desist from its continued use of “Big Lie” and “lies” while describing President Trump’s subjective belief about the integrity of the 2020 election.
I mean, it’s just pathetic and weak. Have some self-respect.
Considering that this does indeed lead to a trial, which seems decently likely, it’s not likely to work out very well for (or credibly) Trump.
In the meantime, on the prelude to nothing, I’ll just mention again, that every state should have a strong anti-SLAPP law, and we also need a federal anti-SLAPP law. You know, like the one in Texas, that Donald Trump used to walk out of Stormy Daniels’ lawsuit when he sued Trump… calling him a liar.
Just for the sake of it, I’ll end this post by quoting Charles Harder’s argument on behalf of Donald Trump. Might be fun for CNN to hang on to this for future filings:
It didn’t matter that the president used harsh language (“non-existence,” “stolen job,” and “fake news”) in expressing his opinion, doubting the veracity of the plaintiff’s allegation, rather than using more civilized terminology. ) was used. Rhetorical exaggeration is not actionable as defamation. Neely vs. Wilson, 418 SW3d 52, 83-84 (Tex. 2013). Courts across the United States have routinely held that the terminology used by the president is constitutionally protected opinion and non-actionable. See e.g., McCabe v. Ratiner, 814 F.2d 839, 843 (1st Circle 1987) (“scam” not defamatory); Oilman v. Evans, 750 F.2d 970, 987 (DC Cir. 1984) (en Banc) (political columnists refer to a political figure as a “Marxist” who is not defamatory); Letter Carriers v. Austin, 418 US 264, 282-83 (1974) (use of the term “scab” in a labor dispute not defamatory); Buckley v. Littel, 539 F.2d 882, 893-94 (2d Cir. 1976) (labeling political writer as “fascist”, not defamatory); Green v. State, 21 So.3d 348, 352 (La. App. 2009) (labeling a state employee a “pathological liar” is not actionable).
Any finding by the Court that the comment has a defamatory meaning and is not a protected opinion can have a forever chilling effect on political debate throughout the United States. Politicians often express their opinions about their political opponents, often in harsh and blunt words. For example, in 1964, Lyndon Johnson ran an ad indicating his rival, Barry Goldwater, to start a nuclear war. John Kennedy campaigned against incumbent Vice President Richard Nixon in 1960 based on claims of a “missile gap” with the Soviet Union, which turned out to be highly misleading. Bill Clinton reportedly misjudged the budget deficit in his 1992 campaign against George HW Bush. None of these statements were anything more than opinion, and none could or could form the basis of a defamation suit.
Indeed, since the founding of our republic, Politicians have often expressed their opinion by calling their opponents “liars”. Doing so does not make every such politician the subject of a defamation claim. President Trump himself has expressed his opinion about a number of opponents, sometimes referring to his opponents by colorful names such as “Lin’ Ted” and “Crooked Hillary”. A defamation standard that turns specific political rhetoric into actionable defamation would freeze the expression that is central to the First Amendment and political speech.
Emphasis in that last paragraph I added.
Filed Under: Genuine Malice, Defamation, Donald Trump, James Trustee, False, Opinion