IT’S TIME TO HAVE A SERIOUS CONVERSATION about America’s free speech problem. Let’s start with the abuse of defamation law by the president of the United States.
On July 18, Donald J. Trump sued the Wall Street Journal and others in federal court in Florida for a spurious $10 billion in damages for allegedly defaming him. The Journal reported that in 2003, Trump gave Jeffrey Epstein a fiftieth birthday letter with, as Trump’s lawyers describe it, “salacious language . . . contained within a hand-drawn naked woman, which was created with a heavy marker.” “Worse,” they add, the defendants “falsely represent as fact that President Trump drew the naked woman’s breasts and signed his name ‘Donald’ below her waist, ‘mimicking pubic hair.’” The Wall Street Journal’s parent company, Dow Jones (which was also sued), maintains “full confidence in the rigor and accuracy of our reporting, and will vigorously defend against any lawsuit.”
Trump’s lawsuit is obviously flawed as a matter of law and what’s already known about the facts. Lawyers with expertise in Florida defamation law told Reuters that the lawsuit warrants tossing out because Trump failed to provide the requisite notice to the defendants in advance of suing them.
Moreover, the $10 billion figure is ridiculously inflated. Damages for defamation are generally based on proof of “actual, quantifiable financial losses directly linked to the defamation.” It’s hard to imagine how Trump can show $10 billion in losses due to the reporting on a nudie drawing (which was not made public) when an April report by the group Democracy Defenders Action tracked an additional $2.9 billion in the Trump family’s wealth since he took office in January due to his crypto products and other conflicts of interest.
To put that $10 billion figure in context, compare a couple of other prominent cases from recent years. In 2022, a Connecticut jury ordered Alex Jones to pay $965 million to fifteen plaintiffs over his claim that the 2012 Sandy Hook Elementary massacre was a hoax staged by the government to push gun control. And in 2023, Fox News paid $787 million to settle the defamation suit alleging that the network lied about the role of Dominion Voting Systems in the 2020 election. Big cases, serious harms—yet the final figures were an order of magnitude smaller than what Trump is demanding.
Finally, the facts are hardly a slam dunk for Trump, whose close relationship with Epstein is well documented. His public claim that “I never wrote a picture in my life” is also belied by numerous drawings bearing his signature that he made of buildings and other images, which have resurfaced since the story around Epstein broke. Undoubtedly, the Wall Street Journal meticulously fact-checked, knowing full well that Trump has a habit of filing monstrous lawsuits against news outlets that do reporting he doesn’t like. But the facts don’t really matter. They never do with Trump.
Trump boasted about this disturbing pattern in a Truth Social post on Friday:
The long hours of depositions—and the overall cost of mounting a defense—is the point here. There are two primary ways to get rid of a lawsuit short of going to trial. The first is to persuade a judge that the complaint is fatally flawed because the law doesn’t allow such a claim to go forward, or because there is a legal defense that seals the deal (like a statute of limitations), or because there aren’t enough facts alleged in the complaint to be worth a jury’s time. The second opportunity is after discovery—in which the parties exchange documents, data, and take the testimony of key witnesses. The judge again can decide on “summary judgment” if the facts plus the law are enough to bother a jury with.
Trump knows that the first stage—the motion to dismiss—can be hard to win, even if the lawsuit is essentially bogus. That’s because the American legal system is built on the premise that people should get a shot at discovery if the allegations in the complaint are plausible. Trump alleges that he didn’t do the drawing. Presumably, the Wall Street Journal has competing evidence that he did. This is the kind of “he said, she said” that often warrants discovery. And it’s why defendants often settle. The hassle, expense, and risk of litigation is greater than the payoff to an undeserving plaintiff.
The case is especially complicated for Trump because when public officials file defamation cases, the standard they have to prove to win is higher than for regular people. They must show “actual malice”—that is, the Supreme Court in 1964 in a case called New York Times v. Sullivan held that they have to prove that the defendant acted “with knowledge that [its statement] was false or with reckless disregard of whether it was false or not.” At trial, in other words, the Wall Street Journal would not necessarily need to show that the story of Trump’s drawing is true; the newspaper could in all likelihood win the battle just by demonstrating that its team had reason to believe it was true when they ran it.
The Wall Street Journal defendants will undoubtedly move to dismiss the case. How their motion will fare is difficult to predict. In a recent case brought by Project Veritas against CNN, the trial judge dismissed on the grounds that the CNN anchor’s remarks were “substantially true.” The Eleventh Circuit Court of Appeals—which also has jurisdiction over Trump’s case—reversed, sending it back to the lower court for more proceedings. But in another case from this year brought by a pro golfer against a bunch of golf media outlets, the district court’s dismissal of the case was upheld by the Eleventh Circuit because all he did was parrot the words “actual malice” in the complaint without including facts backing up that claim.
THE LEGAL MINUTIAE ARE REALLY beside the point. This is about intimidation, bullying, and silencing speech. Which gets us back to the First Amendment. Trump not only has his own billions of dollars to pay lawyers, but he now controls (or appears to basically control) the military, the DOJ and FBI, the CIA, ICE, the federal checkbook, and Republicans in Congress, not to mention his influence on the Supreme Court majority and huge swaths of the social media stratosphere (if you consider his coziness with certain tech titans). He also has a cadre of elite law firms who have pledged him billions in “pro bono” support in exchange for backing off from his threats to their businesses.
When Trump as a private individual files a lawsuit against a media company, it sends a chilling message: Do not cross me or you will pay. When Trump as sitting president of the United States takes the unprecedented act of filing a speech-related lawsuit against a media company over an article about him, it sends an additional message: Do not cross me with your words or you and your business interests will not be safe.
The Supreme Court has long emphasized that the First Amendment enables “all persons . . . to think and speak as they wish, not as the government demands.” The Constitution forbids the federal government from using its massive financial, investigative, and law enforcement powers, in the Court’s words, “to punish or suppress disfavored expression.” The Wall Street Journal lawsuit is not about defamation. It’s about free speech. And so long as we still have the right to free speech, we should not shy away from saying so, and condemning Trump’s gross and dangerous overreach.
Great Job Kim Wehle & the Team @ The Bulwark Source link for sharing this story.
