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On the offense: A new Trump defamation suit, yet another one threatened, and more! — FAN 352

“Former President Donald Trump threatened to sue the Pulitzer Prize’s board, administrator, and members for defamation — less for what they wrote, but for the reporting that they lauded during the time of the Russia investigation.” — Adam Klasfeld
Former President Donald Trump CREDIT Evan El-Amin Shutterstock_1157861293.jpg

Evan El-Amin / Shutterstock.com

Former President Donald Trump delivers a speech at a campaign rally held at the Mohegan Sun Arena in Wilkes-Barre, Pennsylvania.

According to USA Today’s tally, over the past three decades, former President Donald Trump has been involved as a plaintiff or defendant in 4,095 lawsuits. It has also been reported that Trump is the most sued president in U.S. history, having “been sued a whopping 134 times in federal court since his inauguration, which is nearly three times the number of lawsuits our three previous presidents have faced in the early months of their administration combined. In comparison, Obama faced 26 lawsuits, George W. Bush had 7 lawsuits against him, and Bill Clinton had 15.”

1. Defamation action threatened against Pulitzer Prize’s board

Against this backdrop comes a threatened defamation action, one pointed at the Pulitzer Prize’s board, administrator, and members, “less for what they wrote, but for the reporting that they lauded during the time of the Russia investigation.”

Over at Dan Abrams’ Law & Crime, Adam Klasfeld reported that two of Trump’s lawyers, R. Quincy Bird and Jeremy D. Bailie, alleged that:

By ratifying the 2018 prizes awarded to The New York Times and The Washington Post, the Board and its individual members are participating in and perpetuating the absurdly false and defamatory narrative contrived by the President’s political opponents: that he and his campaign somehow colluded with Vladimir Putin and the Russian government to gain advantage in the 2016 U.S. presidential election, and thereafter maintained some nefarious connection with Russian elements during the presidential transition and Trump administration (the “Russia Collusion Hoax”).

Be advised that the Board, including its individual members, may be subject to suit and exposed to a judgment for damages, including punitive damages, for defamation.

“First Amendment experts,” Klasfeld noted, “scoffed at the theory that bestowing honors on news coverage can be defamatory.”

“Just cartoonishly vexatious,” expert Ken White, known by the legal nom de plume Popehat, told Law & Crime. “Legal experts believe that, if Trump’s lawyers actually file this threatened lawsuit, their latest effort would” fail.

Related

2. Trump files $475 million damages action against CNN

Over the course of his business and political career, Mr. Trump has frequently threatened to sue media organizations over news coverage that he deems unfair or disrespectful. Although he rarely followed through, his attacks on the media became a staple of his political messaging and have often been cited in fund-raising entreaties in the run-up to this year’s midterm elections. — Michael M. Grynbaum

The case, recently filed in federal court in Fort Lauderdale, is titled Trump v. Cable News Network, Inc. Trump’s lawyers, Lindsey Halligan and James M. Trusty, are seeking $475 million in damages for their client on the theory that CNN’s coverage caused the former president to suffer “embarrassment, pain, humiliation, and mental anguish.”

Here are a few passages from the 29-page complaint:

The Plaintiff, President Donald J. Trump, has been a long-time critic of the Defendant, Cable News Network, Inc. (“CNN”)—not because CNN does a bad job of reporting the news, but because CNN seeks to create the news (“fake news,” as the Plaintiff has characterized it in public statements). Beyond simply highlighting any negative information about the Plaintiff and ignoring all positive information about him, CNN has sought to use its massive influence—purportedly as a “trusted” news source—to defame the Plaintiff in the minds of its viewers and readers for the purpose of defeating him politically, culminating in CNN claiming credit for “[getting] Trump out” in the 2020 presidential election.

[ . . . ]

CNN’s campaign of dissuasion in the form of libel and slander against the Plaintiff has only escalated in recent months as CNN fears the Plaintiff will run for president in 2024. As a part of its concerted effort to tilt the political balance to the Left, CNN has tried to taint the Plaintiff with a series of ever-more scandalous, false, and defamatory labels of “racist,” “Russian lackey,” “insurrectionist,” and ultimately “Hitler.” 

These labels are neither hyperbolic nor opinion: these are repeatedly reported as true fact, with purported factual support, by allegedly “reputable” newscasters, acting not merely with reckless disregard for the truth of their statements (sufficient to meet the definition of the legal standard for “actual malice”) but acting with real animosity for the Plaintiff and seeking to cause him true harm (the way “actual malice” commonly is understood). CNN has been given the dreaded “Pants on Fire!” designation by PolitiFact for its stories comparing Trump to Hitler. Still, it persists, requiring the time and expense of filing the instant lawsuit. 

By publication of these defamatory statements, CNN has incited readers and viewers to hate, contempt, distrust, ridicule, and even fear the Plaintiff, causing injury to the Plaintiff, the Plaintiff's reputation, and the Plaintiff’s political career. 

‘No legal path forward’

Jessica Levinson, a law professor at Loyola Marymount University, who reviewed the latest suit, said she sees “no legal path forward” for Trump.

“I see no false statements of fact that were made with actual malice,” she said, adding that an “enormous amount” of the CNN comments described as defamatory in the lawsuit appear to be opinions.

Prior defamation suit threatened against CNN

“In 2019, Mr. Trump threatened CNN with a lawsuit over ‘unethical and unlawful attacks.’ CNN called that threat ‘a desperate P.R. stunt.’ A suit never materialized.” (Source here)

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3. Trump must sit for deposition in defamation suit

A federal judge in New York rejected for a second time on Wednesday former President Donald Trump's attempt to have the United States government be substituted for him as a defendant in a defamation lawsuit by former Elle columnist E. Jean Carroll and refused to stop a deposition by Trump scheduled for next week.

“Completing those depositions — which already have been delayed for years — would impose no undue burden on Mr. Trump,” Judge Lewis Kaplan said. “The defendant should not be permitted to run the clock out on plaintiff's attempt to gain a remedy for what allegedly was a serious wrong.”

Trump is scheduled to sit for a deposition Oct. 19.

Yale dean on free speech at Yale Law School

Dear members of our alumni community:

Yale Law School is dedicated to building a vibrant intellectual environment where ideas flourish. To foster free speech and engagement, we emphasize the core values of professionalism, integrity, and respect. These foundational values guide everything we do.

Over the last six months, we have taken a number of concrete steps to reaffirm our enduring commitment to the free and unfettered exchange of ideas. These actions are well known to our faculty, students, and staff, but I want to share some of them with you as well.

  • Last March, the Law School made unequivocally clear that attempts to disrupt events on campus are unacceptable and violate the norms of the School, the profession, and our community.
  • The faculty revised our disciplinary code and adopted a policy prohibiting surreptitious recordings that mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas.
  • We developed an online resource outlining our free speech policies and redesigned Orientation to center around discussions of free expression and the importance of respectful engagement. Virtually every member of the faculty spoke to their students about these values on the first day of class.
  • We replaced our digital listserv with what alumni fondly remember as "the Wall" to encourage students to take time to reflect and resolve their differences face-to-face.
  • We welcomed a new Dean of Students who is focused on ensuring students learn to resolve disagreements among themselves whenever possible rather than reflexively looking to the institution to serve as a referee.

This important and ongoing work takes place against the backdrop of long-standing efforts to encourage the robust exchange of ideas that is essential to any academic community. In all of these efforts, our core model remains the same — we know that the best way for our students to learn is by engaging with their peers and faculty in small, iterative conversations within our community. While this work often is not visible to the wider world, the Law School is moving forward on its central commitments and we are focused on educating the next generation of lawyers and instilling them with the values so many of us hold dear. I'm grateful for your unfailing support and love of the School.

Sincerely,

Heather K. Gerken

Related

I was a bit perplexed that in defending YLS's commitment to free speech, Dean Gerken noted that "the faculty revised our disciplinary code and adopted a policy prohibiting surreptitious recordings that mirror policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas."

From the proverbial "veil of ignorance," this may indeed be a good policy.

But in context, one may recall that the only reason that the law school's egregious bullying of a student involved in the ridiculous "trap house" scandal came to light was because the student, Trent Colbert, surreptitiously recorded statements made to him by two administrators.

[. . .]

In this context, when a student avoids punishment for speech only because he recorded administrator threats, trumpeting the "no surreptitious recording policy" as a boon to free speech at Yale seems tone-deaf at best.

Murder investigation versus freedom of the press

A politician stands accused of killing investigative journalist Jeff German, and it's opened up a scary question: What's more important, a murder investigation or the freedom of the press?

The fatal stabbing in September of longtime Las Vegas investigative reporter Jeff German has sparked a legal fight for control of his laptops and cellphone with what press advocates say threatens journalists’ ability, even in death, to protect confidential sources and unpublished work.

A Las Vegas judge on Tuesday sided with attorneys for the Las Vegas Review-Journal and granted a preliminary injunction blocking police, prosecutors, and public defenders from searching German’s devices.

After calling a temporary restraining order granted last week “too broad,” District Judge Susan Johnson granted a preliminary injunction, adding, “I’m envisioning that we’re all going to be dealing with this quite a bit. We all want to get it right.”

With both sides yet to craft a compromise, the judge set a status check for later this month.

Upcoming event: 'The First Amendment jurisprudence of Justice Breyer'

On Friday, November 18, the First Amendment Law Review and the UNC Center for Media Law and Policy will host an in-person symposium at the Carolina Club. The symposium will focus on the First Amendment rulings written by Justice Stephen Breyer over his 28 years on the Supreme Court. 

Stephen G. Breyer served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. Over his nearly three decades as a Supreme Court justice, Breyer cultivated a reputation for pragmatism, especially with regard to the First Amendment.

The Symposium will consist of a keynote address and three panels: 

  • Justice Breyer and the Freedom of Expression
  • Justice Breyer and the Establishment Clause
  • What does Justice Breyer’s jurisprudence tell us about future First Amendment challenges? 

Registration is now open! 

CLE participants – $35 (CLE credits pending approval)

General Admission – $0 (using promo code NOCLE)

Register on Eventbrite today.

Newspaper hires First Amendment reporter

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The Tennessean/USA TODAY Network Tennessee has hired a full-time beat reporter to cover First Amendment issues, Tennessean Editor and Vice President Michael A. Anastasi has announced.

The reporter, Angele Latham, was hired with funding through the Freedom Forum and Journalism Funding Partners.

“Debate over the banning of books, school curriculum, the place of faith, access to government records, and free speech at college campuses and on social media are just a few of the issues of our day,” Anastasi wrote.

“By bringing the topic under a single journalist,” he said, ”we’ll develop the deep sourcing, expertise and focus needed to explore these complex issues and keep them at the forefront of community discussion.”

Before joining The Tennessean, Latham was the government and business reporter at The Jackson (Tenn.) Sun.  

Forthcoming article on lying and government speech

Throughout the COVID-19 pandemic, Americans have had to confront an extraordinary speech phenomenon: an onslaught of misinformation and recurring lies from government officials, including the former President and his top health officials, about the pandemic. This phenomenon intersects in potentially novel ways with enduring questions about the regulation of government speech.
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Ordinarily, the government is free to articulate its own message to the exclusion of others. It can be pro-democracy or anti-tobacco without running afoul of the First Amendment. Whereas the requirement of content and viewpoint neutrality applies when the government polices the public speech of nongovernmental actors, neither the government nor government officials are required to be neutral in their own messaging. Nor would we want them to be neutral regarding scientific and factual issues. Rather, we expect that government health agencies, such as the CDC or FDA and their officials, would express only one side—the side best supported by science. 

In this sense, we have traditionally treated government speech relating to health, safety, and scientific matters as a particular form of expert speech.

The expectation of content neutrality also does not apply to non-governmental experts, such as physicians and other health professionals. They are expected to ground the information they offer in the best science available. But unlike government officials, they are subject to malpractice law when they are offering advice to particular patients and clients. Government speakers have traditionally faced no such consequences for giving bad advice to the public. The torts of public health malpractice or public official informational fraud are not recognized. This raises the critical question: should they be? Or do First Amendment values demand that government speakers have free reign, even when they distort scientific information related to the health of the citizenry?
[fire_img_embed width='third' align='right' caption='Wendy E. Parmet'][/fire_img_embed]
In this Article, we engage with such questions. We begin by offering a typology that disaggregates speakers and types of speech through the lens of the range of misinformation that officials have offered during the COVID-19 pandemic. We distinguish among government speakers who echo experts, government experts who speak outside of their realm of expertise, and government speakers who lack expertise and issue official statements contrary to expertise. We then explore the First Amendment’s relationship to government health misinformation and consider whether private law should play a similar demarcation between protected and unprotected speech for government health officials as it does for privately practicing health professionals. We then argue that given the strong similarities between certain types of official health-related misinformation and professional speech, the legal regime that applies to the latter, more specifically malpractice law, provides a helpful model for thinking about and, more speculatively, potentially policing the former.

Kanye West (AKA 'Ye') set to buy Parler media platform

Kanye West is acquiring Parler, the alternative social media platform favored by many conservatives. 

Parler’s parent company announced the deal on Monday morning, saying West had made “a groundbreaking move into the free speech media space and will never have to fear being removed from social media again.”

The acquisition comes after West, who has legally changed his name to Ye, had his account temporarily locked by Twitter this month over an antisemitic tweet.

Related

New article on vaccine misinformation and free speech

During COVID-19, the public health toll of vaccine misinformation has risen from bothersome to titanic. As many as 12 million persons may have forgone COVID-19 vaccination in the US because of misinformation, resulting in an estimated 1200 excess hospitalizations and 300 deaths per day. If 5 fully loaded 747s crashed each week due to wrong information, regulators would be apoplectic.

Several other countries have criminalized the spread of vaccine misinformation. But because of the Supreme Court’s attachment to a particular conception of free speech rights, the thrust of the US government’s response is to disseminate accurate vaccine information and hope it corrects misconceptions. Although a few kinds of false statements lie outside the First Amendment’s protections, many others are considered protected speech. The Supreme Court recognizes that false speech can cause harm, but is more willing to abridge speech rights to avoid some kinds of harm than others. Legal scholars have long bemoaned the Supreme Court’s selective attention to harm avoidance, and the pandemic has exposed its public health consequences.

In a 2012 case invalidating a law that criminalized lying about receiving military medals, the Supreme Court refused to hold that false statements lie wholly outside First Amendment protection. The Supreme Court emphasized that false statements can have value; allowing widespread consensus to be challenged without fear of reprisal may facilitate truth discovery.

[. . .]

Vaccine misinformation during the COVID-19 pandemic underscores how reverence for freedom of speech in the US intensifies our vulnerability to public health threats. Given what we know about how vaccine misinformation influences vaccine acceptance and how intractable false beliefs are, this misinformation may be among the most significant barriers to controlling infectious diseases in the 21st century.

New article on critical race theory and free speech in public schools

The past two years have seen a proliferation of state laws that restrict how race may be discussed in public schools. Among other topics, these laws commonly ban the presentation of the viewpoint that the U.S. government—or legal system—is racist. But such policies raise important First Amendment questions: while it is well ac- accepted that school boards and state legislatures retain great discretion to promulgate curricula, the exact scope of that authority is unclear. The Supreme Court case most closely related to this question, Hazelwood School District v. Kuhlmeier, addresses only when school districts may permissibly regulate student speech in curricular contexts. Hazelwood does not resolve the antecedent question of whether local educational authorities may constitutionally constrict the range of permissible political viewpoints in curricula.

This Comment argues that existing doctrine supports recognizing a student's right to be free from political orthodoxy in public education. It proposes a burden-shifting test for vindicating that right. First, courts should evaluate whether curricular decisions restrict the discussion of political viewpoints. Second, the government should have the opportunity to show that the restriction serves a legitimate interest, in part pursuant to the test laid out in Tinker v. Des Moines Independent Community School District. Finally, plaintiffs should be able to prove that the government’s restriction was based on impermissible animus. This Comment concludes by arguing that certain provisions in recently passed critical-race-theory laws should be considered unconstitutional because they restrict political discussion without legitimate justification.

New article on free speech theory

Tracing back to the work of Isaiah Berlin and the debates of the Hutchins Commission, discussions of First Amendment theory have long been divided into interpretations of “negative” rights protecting speakers from interference and “positive” rights ensuring that the public has the right to a quality information system. This paper explores how a First Amendment framework consisting of these two approaches breaks down in a networked communication ecosystem in which the lines between communicator and audience are increasingly blurred. The analysis explores these questions amid ongoing debates over regulating platforms and the possibility of increased public intervention in the floundering news industry. The paper builds on previous scholarship that has deemed First Amendment theory “inadequate,” incorporating the work of Mike Ananny, Joshua Braun, Victor Pickard, Phillip Napoli, and others. It argues that the current information system is too complex for a simple binary approach to First Amendment theory. Instead, it calls for a reflexive approach that embraces how these perspectives interrelate, one that calls for protecting the rights of speakers, but doing so in a way that characterizes them as members of a larger collective of listeners whose interests must be served.

New article on First Amendment retaliation

‘So to Speak’ podcast — ‘What does the First Amendment protect on social media?’

This from the “So to Speak” podcast: 

Does the First Amendment to the United States Constitution protect a private social media company’s right to moderate content on its platform?

A new ruling from the U.S. Court of Appeals for the Fifth Circuit says it does not, and that a Texas law preventing viewpoint discrimination on social media platforms is constitutional.

The issue is likely bound for the Supreme Court, setting up what is arguably the most consequential First Amendment legal case in a half-century. 

Institute for Free Speech Chairman and Founder Brad Smith and George Mason University law professor Ilya Somin join us to debate the ruling and the future of free speech on the internet.

Related:

YouTube: Misinformation and the First Amendment

  • “Misinformation: Does the First Amendment Need An Update?,”  Columbus Metropolitan Club (Oct. 5, 2022) (Featuring Andrew Alexander, Scripps Howard Visiting Professional, Ohio University, David Stebenne, Ph.D., Professor of History and Law, The Ohio State University, and Eddith Dashiell, Ph.D., Professor and Director, E. W. Scripps of Journalism, Ohio University, with host Mike Thompson, Chief Content Director, News).

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2022-2023 SCOTUS term: Free expression & related cases

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