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President Donald Trump is suing CNN in a $475 million defamation lawsuit, according to a complaint filed in federal court in the Southern District of Florida on Monday. The lawsuit faces significant challenges under the governing precedent for public figures. For counsel, those challenges likely seem steeper in a week when Trump unleashed reckless and offensive attacks on Senate Republican leader Mitch McConnell and his wife former Transportation Secretary Elaine Chao as well as journalist, Maggie Haberman. It is not exactly the context that counsel would want when seeking to hold CNN liable for defamatory comments in a difficult legal action.
Even without these inflammatory and personal attacks, Trump faces a very steep hill to climb in a defamation case. As a public figure, he is subject to the standard created in New York Times v. Sullivan, where the Supreme Court held that the first amendment requires breathing space for free speech in criticizing public officials. Accordingly, it established an “actual malice” standard requiring a showing that a false statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” That standard was later extended to not just public officials but public figures.
As president, Trump denounced the standard and called for its removal — a move that I criticized at the time. While I have questioned the need for a public figure standard (as opposed to a public official standard), I have noted that Trump has been a beneficiary of this rule — as this week’s personal attacks demonstrates.
Here is the nut of the complaint:
“One of the most pervasive associations between the plaintiff and Hitler that CNN has employed is its use of the term the ‘Big Lie’ in relation to the plaintiff’s stated concerns about the integrity of the election process for the 2020 presidential election,” read the court filing. “In its campaign of dissuasion, CNN has branded the plaintiff as one who subscribes to the notion of the ‘Big Lie’… a direct reference to a tactic employed by Adolf Hitler and appearing in Hitler’s Mein Kampf.”
The complaint added:
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.”
There is no question that CNN has aired unrelenting attacks on Trump since his inauguration. Moreover, such statements are not entirely made on the commentary side of the network but with reporters and hosts covering stories. Notably, Fox is being sued for defamation over coverage of Dominion voting machines.