I am no lawyer. And the following commentary has no legal substance. However, I have lived in the world for a while, so I offer my opinion.
Trump has sued CNN for defamation and demanded they pay up $475 million in compensatory damages. And I assume there would be punitive damages if the suit were successful. We should note that Trump is doing his best to fix the outcome. He is suing in the US District Court in South Florida, Fort Lauderdale division — where he picked four of the five judges. Bearing that in mind, does the suit have merit? Hardly.
It is another example of Trump pissing in the wind. He has had his feeling hurt. And he is in dire legal straits. So he decided to sue someone. And CNN just got “lucky”. I imagine the legal department at Fox News and just about every other media company must be writing amicus briefs in support of CNN. Because if Trump were to succeed, then Fox — and the rest of them — would be a target for the same reason.
Let us have a look at the suit. Trump has brought it because he argues CNN “seeks to create the news (“fake news,” as the Plaintiff has characterized it in public statements)” and because the media company sought “to defame the Plaintiff in the minds of its viewers and readers for the purpose of defeating him politically.’
It seems to me that CNN could counter sue for being repeatedly defamed by Trump characterizing their stories as “fake news” — which he admits to in the filing.
The brief goes on,
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.” These are repeatedly reported as true fact [sic], with purported factual support, by allegedly “reputable” newscasters, acting not merely with reckless disregard for the truth of their statements (sufficient to meet the definition of the legal standard for “actual malice”).
Truth is an absolute defense against defamation. As such “racist” is a given (see “Mexican rapists”, “shit-hole countries” and his latest broadside against Mitch McConnell, which included Trump slurring his wife, Elaine Chao, as “China-loving wife, Coco Chow."
”Russian lackey” seems apt as he kissed up to Putin like a drunken groupie whenever he met him. And “insurrectionist” is supported by his call for his armed supporters to march on Capitol Hill. Along with his indifference to the attackers as they were threatening to hang the Vice-President.
The brief continues
CNN has been given the dreaded “Pants on Fire!” designation by PolitiFact for its stories comparing Trump to Hitler. Still, it persists, requiring the time and expense of filing the instant [sic] lawsuit.
As far as I can tell, the “Pants on Fire” was given by PolitiFact to Allen Frances, when in an appearance on CNN Brian Stelter’s “Reliable Sources” show he said,
"Trump is as destructive a person in this century as Hitler, Stalin, and Mao were in the last century. He may be responsible for many more million deaths than they were. He needs to be contained, but he needs to be contained by attacking his policies, not his person."
Frances later clarified he was talking about Trump’s climate change denial.
I do not watch CNN, but I have no sense that their official editorial policy is to call Trump “Hilter”. And I suspect the law offers media companies protection when their guests offer off-the-wall commentary (Fox News must pray it does).
The brief continues,
Even though the actual malice standard is met here, in circumstances like these, the judicially-created policy of the “actual malice” standard should not apply because “ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.” Suits like these do not throttle the First Amendment, they vindicate the First Amendment’s marketplace of ideas.
As far as I can tell, this is just Trump’s mouthpiece just making shit up. It is so nonsensical I would not be surprised if Trump himself wrote it. The brief claims that suing media companies for saying stuff is not an attack on their press freedom. The suit says that demanding a company fork over $475 million in compensatory damages (plus whatever a jury would award in punitive damages) vindicates the First Amendment.
That is absurd.
The overview concludes,
As the late Judge Silberman noted:
It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.
First, note that Silberman’s opinion was in dissent. He was on the losing side of the case (Tah v. Glob. Witness Publ'g, Inc.) and therefore, the full court rejected his reasoning.
And as for “unjustified legal rules.” Legal rules are not “justified” or “unjustified”. They simply exist, or they do not. Trump has admitted that the law protects CNN. Which seems an odd strategy in bringing a suit. If Trump thinks the rules are wrong, why did he not try to change them when he was President — and for two years, the GOP also controlled both Houses of Congress?
“One-party control of the press and the media” is also nuts — Trump himself has repeatedly said that no one watches CNN. And the ratings support the fact that it is a small player in the media pond. I realize that conservatives accuse the “mainstream media” of being in bed with liberals. But that is easily gainsaid by the existence of Fox, Newsmax, OAN, the editorial pages of the Washington Post, the NY Post, and the Washington Examiner, plus many others.
The bulk of the brief offers examples of CNN’s supposed defamatory behavior. I will not bore the reader with a litany of detail. But here is one example of the inanity. Trump’s lawyers had demanded that CNN take down 34 pieces in which CNN said Trump was lying about the 2020 election. CNN declined to do so and justified this by pointing out that,
“we note that you have not identified a single false or defamatory statement in your letter. It is well-established that the outcome of the 2020 presidential election was unaffected by fraud, as verified by the dismissal of no fewer than 50 lawsuits by judges across the United States asserting otherwise, the sanctioning of multiple attorneys for making unsubstantiated election-fraud claims, and investigations conducted by the Department of Justice, Congress, and various state and local bodies.”
In essence, CNN says that they are entitled to publish the truth and that there is overwhelming evidence they are publishing it. Which, for some reason, Trump’s lawyers point out in their brief.
I hope for their sake that Trump’s lawyers are not working on contingency. Because this case is going nowhere.
A desperate act of a no doubt desperate and frightened man, thank you Pitt