Why Trump's Attacks on Media Wont Touch Off Libel Suits
ALM Media
Updated
Given the recent sharp increase in the volume and venom of President Donald Trump s shots at the media, is the timing right for journalists to consider suing him for issuing defamatory statements?
The idea of CNN, frequently targeted as liberal media and a prime purveyor of fake news in Trump s tweets and speeches, retaining attorneys to bring a libel case sounds like the set-up for a knee-slapper at a Republican Party fundraiser. But it s not as wild an idea as it sounds.
No less a defender of press freedom than Floyd Abrams, the media attorney who represented The New York Times in the Pentagon Papers case and is one of the country s leading voices on First Amendment issues, was among the first to float the idea.
Press lawyers ought to bear in mind that if things get rough, if the relationship is one of constant denigration and threats, it may be time for journalists to think about using libel laws in a way that is constitutional, Abrams said in an speech delivered the day after Trump was elected.
That opinion was based largely on Trump s campaign statements. It has been reshaped by the actions of President Trump, who has made media-bashing a cornerstone of his rhetoric with a steady drumbeat of denigration and fake news charges aimed at CNN, The Washington Post and New York Times, among others. Trump has even tweeted a veiled threat to go after Amazon.com Inc. over internet taxes when he was at odds with The Post. Jeff Bezos owns The Post as well as the online retail giant.
Trump s long-running feud with MSNBC Morning Joe hosts Joe Scarborough and Mika Brzezinski reached a new height or low, depending on how you view it with a recent comment that claimed Brzezinski was bleeding badly from a face-lift during a New Year s Eve visit to Mar-a-Lago, Trump s Florida club. The statement drew fire from politicians on both sides of the aisle. So did a film clip Trump tweeted, in which he was portrayed as a pro wrestler body-slamming his foe, labeled CNN.
The timing may seem right, but a number of factors stack the odds against a successful libel claim against Trump.
Trump was notably litigious as a private citizen, and since 2000 he and his companies have been sued 1,300 times, according to a recent Bloomberg LP analysis. Dozens of those cases remained open as he took residence in the White House.
Why is there such a legal bulls-eye on his back?
He s a tremendously successful business person who speaks his mind and doesn t easily cave to threats and litigation, said Alan Garten, general counsel for the Trump Organization. And Trump wins most of them.
Of the 203 of the most recent cases analyzed by Bloomberg, Trump and his companies were the defendant in 70 percent of them. He and his companies won in 42 and lost 19. He was the defendant in 33 of those 42 wins. In other words, you may or may not want to see him in the Oval Office, but you definitely don t want to see him in court.
Libel cases, however, have been a vulnerability for Trump as a party to litigation: He s never won a speech-related libel case. Of the seven most recent libel cases, four were dismissed on the merits, there were two voluntary withdrawals and there is one lone victory in an arbitration won by default, according to the Media Law Resource Center.
Still, filing a successful libel suit against Trump remains a long shot at best. A suit would face a long row of high hurdles, from simply completing service of process, to scheduling and immunity claims. That s too many, in the mind of Michael Overing, a media law attorney and an adjunct professor at the Annenberg School for Communication and Journalism at the University of Southern California.
Anybody on CNN would be a public figure and that would raise the standard for proving malice, and as for injury to their reputations, I d be willing to bet that their shows had more publicity and viewership after the president s comments, Overing said. In fact, the ratings for the cable news channels have grown hugely since mid-2016, when Trump began dominating the news as the presumptive Republican nominee for president.
Overing believes there s an even greater and somewhat ironic obstacle to mounting a successful libel suit against Trump.
The press has probably fixed it so that President Trump can say anything he wants about anyone he wants, he said.
To have libel, you must have a false statement that has the appearance of fact, said Overing. The press has so discredited just about everything that he s said that it would be hard to say he s libeled anybody. Nobody takes anything he says seriously, nobody will shun the alleged victims of his statements.
The press runs the risk of going too far, and undercutting its credibility with the public even further, if they get it wrong. CNN journalists recently removed from its web site a story linking the Trump campaign to Russian officials. In the wake of CNN s retraction of the story, three journalists resigned from the network.
I understand people hating him, not wanting to believe him, I get it, said Overing. You don t like him, his politics or his party. But there has to be room for people to speak their mind. We have to give the First Amendment the room it needs.
The potential for damage to be done to the presidency itself concerns Overing.
At the end of the day, if the attacks on President Trump compromise his ability to maneuver in talks with foreign leaders or negotiate a treaty, we re going to have some real problems in the future.
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