Trump Campaign's Ridiculous SLAPP Suit Against CNN Tossed Out Easily

from the as-expected dept

Back in March you may remember that we wrote about yet another ridiculous SLAPP suit filed by the Donald Trump campaign (using lawyer Charles Harder, who, you may also remember, was the lawyer in the lawsuit against us as well). Harder's track record in these performative cases continues to be... rather lacking. Last week, you may have missed that amidst all the other legal disputes Trump's campaign was losing, this particular case was also dismissed -- though, not quite as easily as I had expected. And it does leave it open for an amended complaint to be filed, though I still can't see how it passes muster.

If you don't recall, this particular lawsuit was about an opinion piece on CNN by Larry Noble, a former general counsel for the Federal Election Commission, who laid out a detailed analysis of the Mueller report about Russian interference in the 2016 election, and how it likely violated Federal Elections laws. The article expressed Noble's opinions, based on clearly disclosed facts. And that, by definition, should not be defamatory. District court judge Michael L. Brown -- who was appointed to the bench by Trump -- rejects the complaint, but not because it was opinion and therefore not defamatory.

The case focuses on a single statement in Noble's CNN article:

“The Trump campaign assessed the potential risks and benefits of again seeking Russia’s help in 2020 and has decided to leave that option on the table”

While many other statements in the article include language making it clear that these are Noble's opinion, that one sentence doesn't have that specific language, and that opens it up to being seen as a statement of fact, provable true or false.

A reasonable reader could readily understand the first part as alleging a weighing of the risks and benefits. It has a precise meaning. Defendants argue the second part is “couched in figurative, imprecise language, and thus is not actionable under New York [l]aw.” (Id. at 16.) The Court disagrees. While “[s]tatements ‘couched in loose, figurative or hyperbolic language in charged circumstances’ are more likely to be deemed opinions,” it is not an inflexible rule, and “the court should weigh the totality of the circumstances.”.... Thus, while “left on the table” is figurative language, it is also precise language. A reasonable reader could readily understand it to mean “available for consideration.” The Statement satisfies the first factor of the test.

However, what kills the lawsuit is the failure of Harder and the Trump Campaign to make much of an effort at all to get over the NYT v. Sullivan standard of defamation of a public figure. In order to meet that standard, they need to show that CNN/Noble knew that what was written was false, or had "reckless disregard" for the truth (which doesn't just mean they were sloppy -- it has to mean some actual action to avoid the truth). It seems that Harder barely even bothered to try to get over this "actual malice" bar, and the judge is not impressed:

Most of the allegations in the complaint regarding actual malice are conclusory. Plaintiff, for example, alleges in a purely conclusory manner that Defendants “clearly had a malicious motive” and “knowingly disregarded all . . . information when it published the Defamatory Article.”... The complaint’s allegation that Defendants were “aware at the time of publication” that the Statement was false due to “[e]xtensive public information” is also conclusory and without factual support.... Allegations such as these amount to little more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” which are insufficient to support a cause of action....

Plaintiff’s only other allegation of actual malice is that Mr. Noble had “a record of malice and bias against the President” as evidenced by a tweet and previous articles he had written.... In the tweet, Mr. Noble wrote: “Trump cheats and lies, and when caught, lies again and claims the right to make the rules. He claims defeats as victories, takes credit for anyone’s success and blames his failures on others . . . .” (Id.) The Supreme Court has emphasized “that the actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.”... The tweet might show Mr. Noble’s ill will towards the President, but it fails to plead actual malice in the constitutional sense—that is, it does not show Mr. Noble made the Statement with knowledge that it was false or with reckless disregard of whether it was false.

And thus the case is dismissed, though they can try to amend the complaint to plead actual malice. That seems quite unlikely to get anywhere.

In the meantime, this should be another reminder of why we need better state anti-SLAPP laws (that can apply in federal court) and a full federal anti-SLAPP law.

Filed Under: actual malice, charles harder, defamation, donald trump, larry noble, russia, trump campaign
Companies: cnn

Trump Campaign Is So Pathetic It Claims CNN Poll Is Defamatory; Demands Retraction

from the not-how-it-works,-chief dept

We've seen all sorts of crazy defamation claims over the past few years, but this may be the dumbest. You may have heard that our thin-skinned President is very unhappy about various polls showing that the American public isn't much interested in buying what he's selling. He even hired a pollster, McLaughlin & Associates, with a notoriously terrible record to come up with new polls after seeing more polls that don't reflect the reality he'd like. Which, of course, is his prerogative. It's easier to hide from the truth if you can make up lies to surround yourself with.

The only problem: the other stuff is still out there. And so the Trump Campaign took things up a notch, sending CNN a letter demanding it retract the poll and apologize. CNN reported on this, but didn't share the full letter. In what can only be described as a self-own, a legal adviser to the Trump Campaign, Jenna Ellis, decided to publish the letter she had sent to CNN. She claimed she was posting the full thing on Twitter because CNN's reporting was an "attempt to skew the narrative."

Except... the letter itself makes the story look even worse. The CNN article did only quote parts of the letter, the silly claims "it's a stunt and a phony poll to cause voter suppression, stifle momentum and enthusiasm for the President" but left out the insane legal threat that the poll was defamatory. Yes, the poll. Defamatory. A poll? Defamatory. That is not how any of this works. But, from the letter:

The poll is intentionally false, defamatory and misleading, and designed to harm the Donald J. Trump for President, Inc. campaign.

You are officially on notice of this dispute and therefore are required to undertake steps to affirmatively preserve, and not delete, any and all physical and electronic documents, materials, information, and data that pertain in any way to the June 8, 2020 poll, including without limitation all emails, text messages, instant messages (IMs/DMs), letters and memoranda, articles, and social media postings (including all drafts as well as final version of all written communications), as well as other types of written, physical and digital materials, including handwritten notes, typerwritten notes, summaries, charts, receipts, audio recordings, video recordings, photographs, telephone call logs, calendar entries of al [sic] types, financial data and information, etc. that pertain in any way or might otherwise be relevant or related to the foregoing matters. All sources of documents, materials, information, and data should be preserved, including without limitation, physical files, electronic files, computer servers, email servers, backup tapes, cloud storage, personal computers, hard drives, smart phones, tablets, and other types of storage devices including external drives, thumb drives, zip drives, disks and DVDs. Failure to affirmatively preserve such documents and materials could result in severe sanctions imposted [sic] by a court which could include, among other remedies, monetary sanctions, evidentiary sanctions, issue sanctions and/or the striking of answer and entry of default judgment.

Yup, CNN. Make sure you retain those zip drives. What is this, 1996?

Anyway, a poll is not defamatory. By definition. And, of course, sending such a bogus defamation threat letter, full of that lawyerly garbage, all it's really done is call that much more attention to just how badly Trump appears to doing right now, according to public perception.

Meanwhile, once the campaign published its letter, CNN decided to publish its response, written by the amazingly named General Counsel of CNN, David Vigilante:

To my knowledge, this is the first time in its 40 year history that CNN has been threatened with legal action because an American politician or campaign did not like CNN's polling results.

To the extent we have received legal threats from political leaders in the past, they have typically come from countries like Venezuela or other regimes where there is little or no respect for a free and independent media.

CNN is well aware of the reputation of John McLaughlin and McLaughlin & Associates. In 2014 his firm famously reports that Eric Cantor was leading his primary challenger Dave Brat by 34 points only to lose by 11 points - a 45 point swing. The firm currently has a C/D rating from FiveThirtyEight.

In any event, McLaughlin was able to evaluate and criticize CNN's most recent poll because CNN is transparent and publishes its methodology along with its polling results. Because of this, McLaughlin was free to publish his own critique of CNN's analysis and share his criticisms across the U.S. media landscape. That's how free speech works. It's the American way.

Your letter is factually and legally baseless. It is yet another bad faith attempt by the campaign to threaten litigation to muzzle speech it does not want voters to read or hear. Your allegations and demands are rejected in their entirety.

Yes, but how do you really feel?

Somehow, I get the feeling that a federal anti-SLAPP law is unlikely under the current President.

Filed Under: 1st amendment, defamation, donald trump, free speech, jenna ellis, joe biden, john mclaughlin, polls, trump campaign
Companies: cnn

Trump Campaign Non-Disclosure Agreements Again Being Challenged In Court

from the boilerplating-people's-mouths-shut dept

President Trump is fond of non-disclosure agreements. He's been this way for far longer than he's been president, but his insistence on foisting them on anyone who has worked for him has become problematic now that he's the ultimate public figure.

Some of these NDAs have been broken inadvertently during the course of dubious lawsuits filed by former Trump associates against journalists. In other cases, the DOJ itself has gotten involved, trying to invoke possibly non-existent agreements with the government to block publications by former Trump staffers.

Now, a former Trump campaign staffer is in court challenging the legality of the NDA she signed when managing phone banks for Trump before moving up to be his director of Hispanic engagement. She argues the NDAs serve no purpose but to block speech critical of her former employer. (Non-paywalled version here.)

In the complaint, Ms. Denson’s attorneys argue that the campaign’s nondisclosure agreement, which all staffers were required to sign, “is wildly broad, prohibiting a vast array of speech about a candidate for the highest office and the current President of the United States—forever. And the campaign has repeatedly invoked its prohibitions in an effort to chill truthful political speech it dislikes.”

As is the case with any agreement, people can voluntarily give up some of their rights (in this case, free speech) in exchange for employment. But there's more to it than simply preventing the release of any information Trump might want to remain secret. It also says everyone who signed one must continue to play nice in perpetuity.

[I]t contains a nondisparagement clause that prevents staffers from ever demeaning or disparaging the president, his family or his companies.

Denson is arguing this violates the state's contract law, as well as her free speech rights under both the New York constitution and under the First Amendment. And it will probably be greeted with a strong defense from the Trump campaign, given the fact that Denson has already sued the Trump campaign for allegedly subjecting her to sexual discrimination and slander. That lawsuit, filed in 2017, has led directly to this legal challenge of the NDA itself, which Trump lawyers say Denson violated when she filed her discrimination lawsuit.

NDAs may be common but they're never as necessary as those forcing them on employees think they are. Campaign staffers may have access to a lot of information candidates may not want to see released, but a lifelong gag isn't the only way to handle this. The Wall Street Journal reports the Biden campaign does not require staffers to sign NDAs, indicating it's possible to run a presidential campaign without swearing everyone to secrecy.

If this challenge is successful, it will be a nightmare for Trump and his campaign team. Very rarely has any former staffer or employee stepped forward with anything positive to say about the President. The criticism tends to flow faster now, given the turnover rate in the White House. Not every NDA is foisted on employees by bad employers, but a lot of them are. And when the employer ends up being the leader of the free world, it makes little sense for the man up top to continue to insist former employees can't have full access to their rights.

Filed Under: donald trump, free speech, nda, non-disclosure, trump campaign

Trump Campaign Actually Sues TV Station Over Anti-Trump Ad

from the bringing-free-speech-back dept

A few weeks back, we noted that the Trump Campaign was sending threatening letters about a TV ad by the PAC Priorities USA that criticized Trump's handling of the pandemic. You can see it here:

As we noted, the threat letters only caused a lot more people to watch the ad, and it seemed notable that they only focused on one single line in the ad, and not the rest of it. Now the campaign has, incredibly, made good on the threats and filed suit against at least one TV station, WJFW-NBC in Wisconsin.

The lawsuit is for "common law defamation" and is -- like so many Trump or Trump Campaign lawsuits -- not about any real legal issue, but mostly about three things: (1) creating chilling effects for others, (2) performing for the Trump base, and (3) fundraising for the campaign. There is no chance this lawsuit gets anywhere. Political advertising is among the most protected under the 1st Amendment, and, in fact, Congress has rules telling broadcasters that they cannot reject political ads from campaigns even if they're false. Of course, this ad is from a PAC, not the campaign directly, so that rule does not apply directly, but the general 1st Amendment principles still very much apply.

On top of that, there is no way in hell that the clips, as cut, meet the high bar for defamation of a public figure. The argument made by the campaign is that the clip takes one thing that Trump said -- "this is their new hoax" -- and takes it out of context. The context being that Trump was referring to the Democrats' "politicization" of COVID-19, and the ad implies he's saying that the disease itself is a hoax. The problem is that the difference here is not even remotely close to what it takes to be defamatory, even if it's misleading. For one thing, Trump was playing down the threat and risk of COVID-19 in criticizing Democrats, who were warning that it was going to be a big deal. And that proved entirely accurate. The context here does little to actually make Trump look any better, and in no way rises to the level of it being defamatory.

On top of that, as I've pointed out repeatedly, the Trump campaign itself has regularly (for years!) posted much more misleadingly cut videos of his critics, including Joe Biden. So, even if the Priorities USA ad was defamatory, it would open up the Trump campaign to similar claims many times over. But it's not defamatory.

It's notable, of course, that Wisconsin, where this lawsuit was filed, has no anti-SLAPP law at all. And while the case is still likely to get thrown out at an early stage, the lack of an anti-SLAPP law means that (1) they're much less likely to get back attorney's fees, and (2) it's still going to involve much more expensive legal work than if they could use an anti-SLAPP law.

Still, even though the case will get thrown out, Trump will "succeed." Already I'm seeing clueless fans of Trump's (the same ones who insist they're all for the 1st Amendment) cheering on this example of Trump "hitting back against the fake news media" and it will almost certainly create chilling effects at other news stations that don't want to take on the time and expense necessary to defend even this kind of bogus lawsuit. And that's a huge shame, because a key aspect of the 1st Amendment is to protect political discourse -- even when that discourse is misleading.

At the very least, this case should be a strong reminder that (1) Wisconsin needs an anti-SLAPP law and (2) so does the federal government.

Filed Under: 1st amendment, anti-slapp, chilling effects, defamation, donald trump, edits, free speech, political advertising, slapp, trump campaign, wisconsin
Companies: wjfw

President Trump Is So Upset About This Ad Showing His Failed Handling Of COVID-19 That He's Demanding It Be Taken Down

from the good-luck-with-that dept

Has no one explained to Donald Trump how the Streisand Effect works yet? His campaign has apparently been sending laughably ridiculous threat letters to various TV stations that have been airing an advertisement put together by a group called Priorities USA, criticizing the President's handling of the coronavirus pandemic. The ad highlights Trump's repeated statements playing down the virus and insisting that he had things under control, even as the numbers of infected started to rise exponentially. It's a pretty effective ad. You can see it here.

Priorities also posted the ad to Twitter, and according to a Fox News article, the campaign has also asked Twitter to "flag a nearly identical ad... but the social media giant refused."

The letter is amazing in three separate, but equally dumb ways. First, it focuses solely on just one of the lines that the ad quotes Trump saying: "this is their new hoax." He did say that -- as the letter from his campaign readily admits. Their complaint is that the statement is out of context, and that what Trump was calling a hoax was actually the politicization of the virus response efforts. As the letter notes, here's the statement in full context, that Trump made on February 28th:

Now the Democrats are politicizing the coronavirus. You know that, right? Coronavirus. They’re politicizing it. We did one of the great jobs, you say, “How’s President Trump doing?”, “Oh, nothing, nothing.” They have no clue, they don’t have any clue. They can’t even count their votes in Iowa, they can’t even count. No, they can’t. They can’t count their votes. One of my people came up to me and said, “Mr. President, they tried to beat you on Russia, Russia, Russia.” That didn’t work out too well. They couldn’t do it. They tried the impeachment hoax. That was on a perfect conversation. They tried anything, they tried it over and over, they’ve been doing it since he got in. It’s all turning, they lost. It’s all turning, think of it, think of it. And this is their new hoax. But you know we did something that’s been pretty amazing. We have 15 people in this massive country and because of the fact that we went early, we went early, we could have had a lot more than that.

So, here's the problem. He absolutely said that "this is their new hoax" which he is quoted as saying. The fact that he's referring to the politicization rather than the virus itself is not nearly enough for the ad to violate any possible law. Even in context, it's a problematic statement, as what he's complaining about is the fact that many people were raising alarm bells and he was trying to play down that the whole issue was a problem. As such, it's still pretty damning.

But the fact that the letter literally spends three pages whining about just the "hoax" line, while not mentioning any of the rest of the ad is them totally conceding all of the other moronic stuff the President has said. Indeed, one of the lines -- the "15 people" line -- is also in the ad, and the Trump campaign apparently has no problem with you knowing that he completely downplayed how many people were going to be impacted by COVID-19.

The second dumb thing about the letter, of course, is that the campaign just called a shit ton of attention to it. The ad got some attention, but now it's getting way way way more attention. And even if you took out the hoax line, it's a pretty damning account of a President who refuses to take responsibility or to recognize the seriousness of what has happened under his watch.

The third dumb thing about it is that this is the Trump campaign. They're famous for posting and highlighting selectively edited videos of people they dislike. Hell, at around the same time they were apparently sending this letter, the campaign's Twitter feed posted a heavily edited video of Joe Biden, presenting his recent TV appearances much more out of context than anything in the Priorities ad. Hilariously, the letter cites a bunch of fact checking sites -- including The Washington Post, a company that the campaign itself is currently suing, and which Trump himself regularly accuses of publishing fake news about him. And, yet, if we were to look through the fact check sites quoted in the letter, we'd find that they regularly claim that Trump himself is spewing false information -- and that's never ever stopped Trump, so why should it stop his opponents?

And that's not even getting into why the threat is legally nonsensical -- claiming that failing to take down this add "could put your station's license in jeopardy." This is just silly. Airing political ads that contain false information has been controversial, but is mostly legally protected. Attempts to put in place legal requirements for "truth" in political advertising have been regularly struck down. Notably, the letter from the Trump campaign ignores that, and focuses entirely on cases regarding truth in commercial advertising. But not political advertising.

Also, threatening a TV station that you will have its license to broadcast removed for airing a political opponent's ad is just, in general, a really bad look. It seems likely that most TV stations will dump this letter in the garbage bin where it belongs, but in the meantime, the Trump Campaign has just Streisanded this ad into a ton more views.

Filed Under: covid-19, donald trump, political ads, streisand effect, trump campaign
Companies: priorities usa