The President Wants You to Stop

11 Minute Read

30

MARCH, 2020

Written by
Mark M. Leitner

Within the last month, Donald Trump became the first sitting president to file suits against media organizations, claiming that the New York Times, Washington Post, and CNN defamed him in opinion pieces about Russian influence on his 2016 and 2020 campaigns. On March 25, 2020, President Trump doubled down, sending cease-and-desist letters to local television stations in Florida, Michigan, Wisconsin, Pennsylvania, and Minnesota, asserting that they violated the law by airing an advertisement containing the “false assertion” that Trump called COVID-19 a “hoax”.[1] (The ad, produced by Priorities USA Action Fund, is here;[2] you should definitely watch it, so you can make your own evaluation. Maybe even a couple times.)

The letters demand that the stations stop airing the ad immediately, or face “all legal remedies available” to the campaign. Although it doesn’t identify those remedies, from the context it is pretty clear that the principal threats are a petition asking the Federal Communications Commission to revoke the stations’ licenses, and a defamation suit. (Under black-letter defamation law, the publisher of a defamatory statement can be held liable, even if the statement appears in an advertisement, not in content actually generated by the station.)[3]

This is new territory for President Trump. Until now, he has generated a lot of anti-media rhetoric in his tweets and speeches, but he has not aggressively pursued criminal prosecutions or prior restraints. Even now, he’s chosen civil suits or administrative proceedings to air his latest grievances with people speaking out about his approach to governing.

I believe that is because he and his lawyers know that these actions are absolutely baseless on their merits. His chances of winning any of them are too small to measure. Andrew McCarthy of the National Review is a dyed-in-the-wool right-winger, and even he thinks the suit against the Times, which is substantially identical to the other two, is “frivolous.”[4] So does everyone else who knows First Amendment law, and isn’t also in the tank for the President. Criminal prosecutions won’t achieve his objectives either.

President Trump isn’t bringing these suits to vindicate his legal rights. He’s suing, or challenging license renewal, to do three things: (i) energize his political base and focus its energy on the oft-repeated snark about the “fake news” media; (ii) raise money for his 2020 re-election campaign; and (iii) most important – intimidate newspapers, broadcasters, reporters, bloggers, PACs, and anyone else thinking about publicizing an anti-Trump opinion into thinking twice about it, lest they face the expense and inconvenience of defending a lawsuit. Remember that even a completely bogus lawsuit doesn’t just go away, especially when it’s backed by a well-funded person, company, or presidential campaign. All of these cases should be thrown out on a motion to dismiss, before expensive discovery takes place, but even a motion to dismiss in high-stakes cases like these will be costly. Suits of this kind might not necessarily be a big deal for the Washington Post or CNN, but may be for a local affiliate, and they definitely will be for a blogger sitting at his kitchen table cranking out posts that criticize Trump based on the facts before them.

Even if Trump loses the cases, they’re still red meat for the base. Remember that any judge that rules against his position isn’t applying the law – he’s an “absolute disgrace” who is biased because he’s (an Indiana-born) “Mexican.”[5] President Trump made those statements about federal judge Gonzalo Curiel, but there are many other examples of his petulant reactions to court decisions against him. The President and his true believers do this any time someone uses facts or logic to contradict him. Recent attacks on Dr. Anthony Fauci over his assessments of the impact of the Coronavirus on the United States demonstrate my point further.

“Why are you so sure that President Trump is going to lose? Aren’t you biased?” Of course I am. But my bias on these issues is based on a stack of law books a couple stories high.

Around now, you’re entitled to ask, “Why are you so sure that President Trump is going to lose? Aren’t you biased?” Of course I am. But my bias on these issues is based on a stack of law books a couple stories high. In those books are court and agency decisions making it absolutely clear that the President’s arguments don’t hold water. And I would be making these arguments against any politician who abused the legal system in this way. The core of my political beliefs is a commitment to free speech, for everyone. The rule of law is essential, and one of its fundamental principles is that legal rules apply across the board, no matter whether it’s a Republican, Democrat, Communist, or anarchist asserting their protection. We protected the Nazis marching in Skokie for a reason.

The next post in this series will show why President Trump’s threat to challenge the licenses of the local affiliates that aired the Priorities USA ad is a loser. In a third post later this week, I’ll argue that all four defamation claims are equally defective, and I will speculate why these claims are being made by his campaign, rather than by him personally.

[1] https://assets.donaldjtrump.com/2017/web/hero_images/Redacted_PUSA_Letter.pdf (return)

[2] https://www.youtube.com/watch?v=bkMwvmJLnc0 (return)

[3] As I will discuss in future posts, filing bogus libel suits against newspapers and activists was one of the principal tools used by white supremacists in the 1960s to suppress the civil rights movement. New York Times v. Sullivan, 376 U.S 254 (1964) the decision that established the “actual malice” requirement of First Amendment law, requiring public officials to prove that a publisher either knew an allegedly libelous statement was false or that it acted with reckless disregard for its truth or falsity, was one of those suits. In that sense, Trump is reviving a vile American tradition. (return)

[4] https://www.nationalreview.com/2020/02/donald-trump-libel-lawsuit-new-york-times-losing-battle/ (return)

[5] https://time.com/4356045/donald-trump-judge-gonalo-curiel/ (return)