Trump steps up intensity in battle with media

Anybody who thought candidate Donald TrumpDonald John TrumpDemocrats blast Trump for commuting Roger Stone: 'The most corrupt president in history' Trump confirms 2018 US cyberattack on Russian troll farm Trump tweets his support for Goya Foods amid boycott MORE might scale back his war with the press once he got elected was sorely mistaken. Even with the pressures and daily challenges of the White House, Trump seems never to miss an opportunity to bash his media antagonists. From press sprays to rallies, media bashing is part of Trump’s schtick. His devoted followers love it and expect it. The press doesn’t like the savage critique, but most reporters recognize Trump anti-media rants are now baked into the relationship.

But the Trump machine has now taken things in a new direction, and the repercussions are much more serious.

The Trump 2020 campaign apparatus has filed defamation lawsuits against three major news organizations. The outlets — CNN, New York Times, and Washington Post — are being sued over commentaries published in the last year. Each of the commentary topics, as one might have guessed, dealt with Russian interference in the 2016 election and the Trump campaign’s supposed connection to it.

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Trump’s criticism of the press hurts reporters’ feelings and may play a factor in the press’ low credibility ratings. It is one thing for media outlets to battle Trump in the public opinion arena, but taking the brawl into the courtroom is a new and dangerous escalation against the media.

There is little doubt this new anti-press strategy is designed to make news organizations pause and ponder before engaging in criticism of Trump. This is the classic example of the “chilling effect.” No news outlet wants to pay for lawyers and show up in court, even for lawsuits they suspect are frivolous. Libel lawyers are expensive, whether in the courtroom or in the newsroom, where they might now need to hang out so as to screen/pre-approve all copy with potential criticism of the Trump administration.

In addition to Trump, other politicians are now lining up to sue the press. Former Republican vice presidential candidate Sarah Palin is moving forward with a suit against the New York Times. Congressman Devin NunesDevin Gerald NunesHow conservative conspiracy theories are deepening America's political divide Lawmaker-linked businesses received PPP loans Voters must strongly reject the president's abuses by voting him out this November MORE (R-Calif.) has sued CNN and a reporter for Esquire. Virginia Lieutenant Governor Justin Fairfax, a Democrat, just had his defamation suit against CBS dismissed, but promises an appeal.

Odds are the Trump campaign can’t win in court and could even see these suits dismissed outright. A public figure (and what figure could be more public than the president?) has to get over a high bar to win a defamation suit. The standards were established in a 1964 landmark Supreme Court decision in the case of New York Times v. Sullivan. The plaintiff must not only prove the piece of journalism was false and defamatory, but also that it was published recklessly and with malicious intent to do damage to the pubic figure’s reputation. Assessing a reporter’s maliciousness is mind-reading most courts are hesitant to do. Further, courts figure that politicians have avenues to battle back rhetorically and to set the record straight. And nobody has more direct access to these avenues than the president.

Public figures must be subject to careful scrutiny and criticism from the citizens’ free press surrogates. Today’s Supreme Court, headed by Chief Justice John Roberts, has a well-earned reputation for supporting robust and rowdy free expression under the First Amendment.

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But the press outlets involved aren’t so holy either. The journalistic pieces that prompted these defamation lawsuits were labeled as commentary/opinion. Each, however, seems to blend in an assumption about Trump-Russia connections in the election. That’s the rub. Opinions based on incorrect evidence might not get full protection in court. Labeling a column as opinion is not a free pass to push a potential falsehood. And the Trump campaign presents the Mueller report as proof there was no conspiracy with Russia during the election. 

This all brings to mind a lyric from the 1960s protest song by Buffalo Springfield, “Nobody’s right if everybody’s wrong.” On one side, according to Trump's critics, is a thin-skinned president who doesn’t like negative press coverage and runs to court with cage-rattling lawsuits. And then, according to the Trump campaign and other media critics, there are press outlets so determined to smear Trump with Russian collusion that their opinion writers out-kick their coverage.

Whatever gets decided on these lawsuits in lower courts, it would be helpful if the losing side pushed appeals all the way to the Supreme Court. Public figures and the press alike could use up-to-date clarification of what constitutes defamation in the year 2020. Much has changed in the public affairs landscape since the Sullivan decision over half a century ago.

Justice Clarence Thomas last year publicly called for the Court to take up a defamation case that would reconsider the standards established in the Sullivan decision. These Trump lawsuits could be the prompt the Court needs. It is time for the Court to provide more precise guidance on how to maintain free-wheeling public commentary while protecting high profile figures from being analyzed/criticized without a foundation in real evidence.

Jeffrey McCall is a media critic and professor of communication at DePauw University. He has worked as a radio news director, a newspaper reporter and as a political media consultant. Follow him on Twitter @Prof_McCall.