First Amendment News

Defamation dictionary

First Amendment News 292: ‘Tis the season! More Trump-related defamation suits moving through the courts

March 31, 2021

“The rise of defamation lawsuits by and against public figures” — That was the title of an early February post on this site. In that post I asked Lee Levine, a noted media lawyer and scholar, what explains this. His answer:

There are two very different phenomena at play here. Although both of them can fairly be traced to Donald Trump. First, ever since he descended the golden escalator, there has been, at least on the right, a reinvigoration of the use of libel suits by public officials and public figures as a tool to “open up the libel laws” and fight back against what Trump labeled “fake news” disseminated by responsible media (aka “enemies of the people”). . . . Second, Trump legitimized lying as a political tool at least in some circles. Ironically, this has emboldened certain public figures, especially those who can find an audience either on social media or right-wing “news” outlets, to propagate or otherwise pass long defamatory falsehoods.

Professor Stephen Solomon gave this answer:

The avalanche of defamation suits seems to be a fallout of our fractious political culture, another measure of where we are now. . . . Another source of defamation suits reflect a related phenomenon, the attack on truth.

And finally, Dean Erwin Chemerinsky said this:

There clearly has been a significant increase in defamation suits by and against public officials and public figures. Some seem quite frivolous and are likely just efforts to use litigation to make a political point. Some are a result of Donald Trump and his rhetoric. But I also think it reflects the tremendous growth of media where defamatory things can be said and the lack of Supreme Court decisions about defamation for a long time.

As this post reveals, the defamation litigation trend against public figures and now media outlets appears to be getting ever stronger. Sooner or later, one of these cases will find its way to the Supreme Court, which has not handed down a First Amendment ruling in a defamation case in a long time — Masson v. New Yorker Magazine, Inc. (1991).

Note: First Amendment scholar and defamation treatise author, Dean Rodney Smolla, is involved as counsel for the plaintiffs in two notable defamation cases: Tah v. Global Witness Publishing, Inc. (cert. petition pending) and US Dominion v. Fox News Network (see below).


US Dominion v. Fox News Network

→ Complaint here.

Counsel for Dominion in Delaware Superior Court 

Brian E. FarnanBrian E. Farnan (Farnan LLP)

Allegation # 1

Fox, one of the most powerful media companies in the United States, gave life to a manufactured storyline about election fraud that cast a then-little- known voting machine company called Dominion as the villain. After the November 3, 2020 Presidential Election, viewers began fleeing Fox in favor of media outlets endorsing the lie that massive fraud caused President Trump to lose the election. They saw Fox as insufficiently supportive of President Trump, including because Fox was the first network to declare that President Trump lost Arizona. So Fox set out to lure viewers back—including President Trump himself— by intentionally and falsely blaming Dominion for President Trump’s loss by rigging the election.

Allegation # 2

Fox endorsed, repeated, and broadcast a series of verifiably false yet devastating lies about Dominion. These outlandish, defamatory, and far-fetched fictions included Fox falsely claiming that: (1) Dominion committed election fraud by rigging the 2020 Presidential Election; (2) Dominion’s software and algorithms manipulated vote counts in the 2020 Presidential Election; (3) Dominion is owned by a company founded in Venezuela to rig elections for the dictator Hugo Chávez; and (4) Dominion paid kickbacks to government officials who used its machines in the 2020 Presidential Election.

Allegation # 3

Fox recklessly disregarded the truth. Indeed, Fox knew these statements about Dominion were lies. Specifically, Fox knew the vote tallies from Dominion machines could easily be confirmed by independent audits and hand recounts of paper ballots, as has been done repeatedly since the election. Fox also knew that these lies were being rebutted by an increasingly long list of bipartisan election officials, election security experts, judges, then-Attorney General Bill Barr, then-United States Director of the Cybersecurity and Infrastructure Security Agency Chris Krebs, Election Assistance Commissioner Ben Hovland, Republican Georgia Governor Brian Kemp, Republican Georgia Secretary of State Brad Raffensperger, and Republican former Colorado Secretary of State Wayne Williams, to name a few—not to mention some within Fox itself.

Rodney SmollaRodney Smolla (Delaware Law School)

Allegation # 4

Fox likewise knew there was no evidence whatsoever to support the Venezuela or “kickbacks” claims, the latter of which was obviously manufactured whole-cloth in an effort to discredit Republicans who undermined the false election- rigging claim by verifying the vote counts from Dominion machines. Yet even after Fox was put on specific written notice of the facts, it stuck to the inherently improbable and demonstrably false preconceived narrative and continued broadcasting the lies of facially unreliable sources—which were embraced by Fox’s own on-air personalities—because the lies were good for Fox’s business. [see complaint for allegations 5-7]

Related

C-SPAN: Abrams & Reynolds on the media & libel laws

Screen shot of program

NY’s high court allows defamation suit against Trump to proceed

New York state’s highest court on Tuesday cleared the way for a former contestant on “The Apprentice” to sue Donald Trump for defamation, after the former U.S. president called her a liar for accusing him of sexual assault.

Trump had argued before leaving the White House on Jan. 20 that Summer Zervos could not pursue her case because a sitting president could not be sued, but the state Court of Appeals said in a brief order that ‘the issues presented have become moot.’

Zervos’ case will now return to a Manhattan trial court, where her lawyers may have an opportunity to question Trump under oath. The case had been on hold during Trump’s appeal. . . .

Zervos came forward during the 2016 presidential campaign with accusations that Trump subjected her to unwanted kissing and groping after she sought career advice in 2007, two years after her appearance on his reality television show.

She sued Trump in January 2017 after he branded such allegations by women “lies” and retweeted a post calling Zervos’ claims a ‘hoax.’

Zervos has sought a retraction or an apology, plus compensatory damages and punitive damages.

Uniform Law Commission — Public Expression Protection Act

The Uniform Public Expression Protection Act is designed to prevent and abuse type of litigation called a SLAPP, or “strategic lawsuit against public participation.” A SLAPP maybe filed as a defamation, invasion of privacy, nuisance, or other type of claim, but it’s real purpose is to silence and to intimidate the defendant from engaging in constitutionally protected activities, such as free speech. The Uniform Act contains a clear framework for the efficient review and dismissal of SLAPPs.

The ULC site also contains Legislative Bill Tracking resources.

For information about enacting the Uniform Act, please contact ULC Legislative Council Kaitlin Wolff at (312) 450-6615 or kwolff@uniformlaws.org.

[ht: David Keating]

Sampling of recent defamation cases 

Both cases were successfully argued by Bruce E.H. Johnson.

‘Court voids Trump campaign’s non-disclosure agreement’

This from Josh Gerstein over at Politico:

A federal judge ruled Tuesday that a broad non-disclosure agreement that Donald Trump’s 2016 presidential campaign required employees to sign is unenforceable.

U.S. District Court Judge Paul Gardephe’s ruling generally steered clear of the constitutional issues presented by such agreements in the context of political campaigns. Instead, the judge — an appointee of President George W. Bush — said the sweeping, boilerplate language the campaign compelled employees to sign was so vague that the agreement was invalid under New York contract law.

“As to the scope of the provision, it is — as a practical matter —unlimited. . . . Accordingly, Campaign employees are not free to speak about anything concerning the Campaign,” wrote Gardephe. “The non-disclosure provision is thus much broader than what the Campaign asserts is necessary to protect its legitimate interests, and, therefore, is not reasonable.”

Gardephe’s 36-page decision said a non-disparagement clause in the agreement was similarly flawed.

New scholarly articles on defamation

David Andrew Logan (RWU Law)David Andrew Logan (RWU Law)

New York Times v. Sullivan (1964) is an iconic decision, foundational to modern First Amendment theory, and in a string of follow-on decisions the Court firmly grounded free speech theory and practice in the need to protect democratic discourse. To do this the Court provided broad and deep protections to the publishers of falsehoods.

This article recognizes that New York Times and its progeny made sense in the “public square” of an earlier era, but the justices could never have foreseen the dramatic changes in technology and the media environment in the years since, nor predict that by making defamation cases virtually impossible to win they were harming, rather than helping self-government. In part because of New York Times, the First Amendment has been weaponized, frustrating a basic requirement of a healthy democracy: the development of a set of broadly agreed-upon facts. Instead, we are subject to waves of falsehoods that swamp the ability of citizens to effectively self-govern. As a result, and despite its iconic status, New York Times needs to be reexamined and retooled to better serve our democracy.

Two wrongs don’t make a right, but can two rights make a wrong? With public-figure defamation actions, the answer is sometimes “yes.” To protect the right to freedom of speech, the Supreme Court held in New York Times v. Sullivan that public officials who sue for defamation must prove that defendants acted with “actual malice.” On its own, the Sullivan standard is almost impossible to satisfy. But in many states, the true standard for public-figure defamation suits has become even tougher.

Seeking to protect the right to petition, many state legislatures have enacted statutes targeting so-called “strategic lawsuits against public participation” (SLAPP)—suits filed in retaliation for the exercise of First Amendment rights. These statutes permit defendants who claim they were sued for their First Amendment activities to make “anti-SLAPP” motions early in the litigation. To prevent dismissal of their claims, plaintiffs then must show—before discovery—a probability of success on the merits. Whatever these statutes’ utility in ordinary litigation, they saddle public-figure defamation plaintiffs with an almost-comical catch-22: to survive an anti-SLAPP motion and obtain discovery, plaintiffs must demonstrate that defendants likely acted with actual malice. But because “actual malice” refers to the defendant’s mental state, it often requires discovery to prove. By trapping plaintiffs in this dilemma, anti-SLAPP double-counts defendants’ rights and creates an anti-plaintiff super-standard.

This synergy of Sullivan and anti-SLAPP has led to an undesirable underenforcement of defamation law. Despite Sullivan and anti-SLAPP’s intended goals, their union immunizes defamatory speech unrelated to the search for “political truth” or the “marketplace of ideas.”

‘Journal of Free Speech Law pre-call for papers: Student speech and associational privacy’

This Term, the Court is considering two important First Amendment issues—K-12 student speech (in Mahanoy Area School District v. B.L.) and associational privacy (Americans for Prosperity Foundation v. Becerra).

Journal of Free Speech Law

The Journal of Free Speech Law, a new peer-reviewed, faculty-edited journal, will quickly publish two to four articles on each of these subjects, as a symposium issue. We seek not case notes as such, but rather articles on the broader subjects in light of the new decisions. And given our publication speed, these will likely be the first such articles to be published in a full-fledged law journal. Our plan:

  1. Since the cases will likely come down July 1, we’d need to see submissions by Aug. 1. But given the short timeline, we’ll be open for rougher submissions than usual. What we want to see, to make our decision, is a clear explanation of the key novel, interesting, and useful contributions that the article would make.
  2. We require exclusive submissions (via Scholastica, https://freespeechlaw.scholasticahq.com/), but we will give an answer within two weeks (our average response time so far is under a week). Thus, if we say no, there will be plenty of time to submit to other journals in the August submission cycle.
  3. We plan on publishing the articles online and on Westlaw as soon as the author provides a publishable version, which could be as quickly as early September (or longer, if the author so requires).
  4. Our journal also publishes in print. We expect the print edition to come out towards the end of the year, depending on the timeline for the articles; but we expect that these days the important thing is getting the article out quickly online.
  5. We will set up online symposia on the drafts, so that authors can get feedback from the other authors and from other First Amendment scholars.
  6. All this would of course be contingent on the Court saying something interesting, rather than just dismissing the case on unrelated procedural grounds (such as what the Court did in U.S. v. Sineneng-Smith, for instance).
  7. We will resend this announcement when the cases come down, but we wanted to alert prospective authors in advance.

Four forthcoming books 

YouTube: First Amendment Watch event on ‘Open Courts & Racial Justice’

For millions of Americans, the brutal death of George Floyd at the hands of Minneapolis police reinforced long-held suspicions about racial bias in the United States’ police departments. This month, the trial for the officer filmed with his knee on Floyd’s neck will begin, putting the spotlight again on the legal system’s handling of police killings of Black people. The press and public will be able to observe the trial — both in person and from their homes — and decide for themselves if the system they see is just and fair, thanks to the First Amendment’s promise of open courts.

First Amendment Watch Logo

The high-profile case has raised numerous First Amendment issues, including attempted gag orders, questions about public access to evidence in the case, and whether cameras would be allowed to expand public access, given public health considerations that restrict how many people can be in the courtroom.

In this #FAWPublicForum conversation co-sponsored with the First Amendment Coalition, we discuss the importance of access to our courts, with a special focus on the George Floyd case. Hear from Leita Walker, a First Amendment lawyer for a Minneapolis media coalition that successfully won greater access to the case, and First Amendment lawyers David Snyder and David L. Hudson Jr. First Amendment Watch staff writer Soraya Ferdman will moderate the discussion.

Video link here.

More in the news

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

  • Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)
  • Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case — decided on statutory grounds)

Cases argued

Cert. granted

Pending petitions

Cert. denied

First Amendment-related 

Last scheduled FAN

This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.