Trump escalates fight against press with libel lawsuits

The Trump campaign’s libel lawsuits against The New York Times, The Washington Post and CNN mark a dramatic escalation in the president's long fight with the media.

Legal experts have said the suits are dead on arrival, failing to meet the high bar to prove defamation of a public figure, but they fear an environment in which powerful elected officials try to use the courts to intimidate the press.

“The concern here is not that one of these suits would win on the merits — it’s the chilling effect that it has on public discussion of political affairs,” Jonathan Peters, the Columbia Journalism Review's press freedom correspondent and a University of Georgia media law professor, told The Hill. 

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Trump has regularly attacked the press, often referring to reporters as the “enemy of the people,” but the latest lawsuits, targeting an op-ed from the Times, one from CNN and two separate opinion columns in the Post, mark the first time he has sued news organizations as president. After filing the complaint against the Times, Trump warned that more were “coming.” 

The lawsuits, filed in consecutive weeks, allege that the outlets knowingly published false information about the president in opinion pieces that touched on the investigation into Russian interference in the 2016 election.

The lawsuit filed in federal court in Washington, D.C., against the Post cites a June 2019 piece from Post opinion writer Paul Waldman.

"The 2020 election will obviously be distinct in all kinds of ways we can’t yet anticipate," Waldman wrote. "For instance, who knows what sort of aid Russia and North Korea will give to the Trump campaign, now that he has invited them to offer their assistance?" In the sentence, Waldman linked to an ABC interview in which Trump suggested he would accept potentially damaging information from a foreign government about a political opponent.

The campaign argues that statement was “defamatory” because no Trump associate has made a statement inviting assistance from Russia or North Korea. 

The campaign also takes issue with an opinion article that said the Russia probe found Trump's team “tried to conspire with, and happily profited off of,” Moscow's efforts.

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The lawsuit against the Times, filed in New York state court, alleges the paper defamed Trump in a March 2019 op-ed that claimed the president and his associates had an “overarching deal” with Russia in 2016. 

The special counsel report from Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE did not find evidence to conclude that Trump's campaign conspired or coordinated with Russia in 2016 but did find multiple links between campaign officials and Russian government individuals.

The CNN lawsuit, filed on Friday in federal court in Georgia, cites an op-ed in which author Larry Noble, a former Federal Election Commission general counsel, wrote that 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."

The Times and Post have vowed to fight the suits, which will have to overcome stringent free speech protections. Under precedent from the landmark 1964 case New York Times v. Sullivan, the Supreme Court has held that a plaintiff must prove defendants made statements at issue either knowing they were false or in reckless disregard of the truth. The court also grants wide freedom for opinions dealing with matters of public knowledge. 

First Amendment experts, though, are more worried about the broader implications, noting that smaller news organizations may not have the resources to fight such complaints and that they may suppress opinion pieces out of fear of retaliation. 

“The Times and the Post have the resources to hire excellent legal counsel who will demonstrate why these lawsuits are completely meritless,” Brian Hauss, a staff attorney with the American Civil Liberties Union’s Speech, Technology and Privacy Project, told The Hill. “But news publications or even individuals who don’t have access to these resources are very naturally going to think twice before saying something criticizing the president if they’re worried that the president’s campaign team is going to be filing even a meritless defamation lawsuit against them.”

Hauss said the Trump campaign’s legal actions are prime examples of what are known as "strategic lawsuits against public participation" (SLAPP), which press advocates say are filed with the intent of silencing discussion on topics of public concern and drawing out lengthy, financially burdensome court disputes.

Thirty states and Washington, D.C., have implemented anti-SLAPP laws, but the protections they offer vary. For instance, New York’s anti-SLAPP law protects only petition activity, while Washington, D.C.'s protects any acts “in furtherance of the right of advocacy on issues of public interest,” including written statements. The law also gives defendants the opportunity to file a motion to dismiss, which would then pause discovery. If the court grants the motion, they may be awarded appropriate legal fees and costs from the case. 

Washington, D.C.'s anti-SLAPP law does not apply in federal court, where Trump’s lawsuit against the Post was filed. There is no federal anti-SLAPP legislation.

Evan Mascagni, policy director at the Public Participation Project, a group advocating for a federal anti-SLAPP provision, argued that the Trump campaign’s lawsuits were filed in “in a way to avoid” laws designed to combat this type of legal action. 

Mascagni said the cases represented a kind of “forum shopping,” wherein public figures file defamation or libel lawsuits in jurisdictions with weak anti-SLAPP laws. He pointed to the string of lawsuits Rep. Devin NunesDevin Gerald NunesSunday shows preview: States begin to reopen even as some areas in US see case counts increase Pass the Primary Care Enhancement Act Trump campaign launches new fundraising program with House Republicans MORE (R-Calif.) has filed in Virginia, a state with traditionally weaker anti-SLAPP laws, as one example. 

Nunes filed a $150 million defamation suit against McClatchy in Virginia state court in April 2019 despite the issue concerning an article published in the McClatchy-owned Fresno Bee, a paper in California. He’s also sued Twitter, which is headquartered in San Francisco, in Virginia for allegedly allowing users to spread "false and defamatory statements" about him.

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The high-profile nature of these cases has some advocates hopeful they will lead to a concerted push for more protections against frivolous lawsuits they believe are designed to blunt speech. The Virginia legislature in February passed bills aimed at granting defendants more recourse in the face of such suits. 

New York state Sen. Brad Hoylman (D) has introduced a bill to expand the protections in the state's current anti-SLAPP law. Kentucky’s Republican-led legislature is also considering implementing such legislation.

Jenna Ellis, senior legal adviser to Trump’s campaign, has argued that the news outlets published the op-eds at issue with the “intentional purpose of hurting” the president’s reelection bid, claiming they were “100 percent false and defamatory.” 

The campaign did not respond to a request for further comment from The Hill.

The recent lawsuits mark the first time Trump has sued a journalist since accusing Timothy O'Brien of libel in 2006 over the biography “TrumpNation: The Art of Being the Donald.” The case was dismissed in 2009.

As president, Trump has threatened to take a closer look at the nation's libel laws. Trump claimed in January 2018 that current libel laws were a “sham” as he sought to prevent the publication of a book by writer Michael Wolff. He has also threatened to sue The Daily Beast and others while in office.

“It’s no coincidence that a president who refers to the press as the enemy of the people is also out there filing meritless defamation lawsuits,” Hauss said.

“Courts will see through these lawsuits," he added. "But the danger posed by them is that would-be critics of the president will look at the suits and think twice before speaking their mind.”