Now comes defense attorney Alan Dershowitz, suing CNN for … unfairly abridging his impeachment argument. The news network’s goal, according to Dershowitz’s complaint, filed in federal court in south Florida, was “to falsely paint Professor Dershowitz as a constitutional scholar and intellectual who had lost his mind.” He’s seeking $300 million in compensatory and punitive damages.
As Dershowitz’s complaint tells the story, the emeritus Harvard Law School professor saw his reputation tarnished on CNN’s airwaves on Jan. 29. On that notable day in the impeachment trial of President Trump, Sen. Ted Cruz (R-Tex.) posed this question to the Senate chamber: “As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy?”
With that, Dershowitz took the floor and plowed through an abstruse and tortuous legal argument so resistant to abridgment that it’s best left to repose in the fullness of the C-SPAN vault. But for the purposes of this post, we’ll do our best: Dershowitz began by posing a hypothetical of a Democratic president conditioning aid to Israel or the Palestinians based on Washington’s desired outcomes. “There’s no one in this chamber that would regard that as in any way unlawful. The only thing that would make a quid pro quo unlawful is if the quo were, in some way, illegal.”
There was more, much more: The renowned attorney noted that a president could have three motives — a motive in the public interest, a motive in his own political interest and a selfish financial motive. Focusing on the second one, Dershowitz said this:
Every public official that I know believes that his election is in the public interest and mostly you’re right, your election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment. I quoted President Lincoln. When President Lincoln told general Sherman to let the troops go to Indiana so that they can vote for the Republican Party, let’s assume the president was running at that point and it was in his electoral interest to have these soldiers, put at risk the lives of many, many other soldiers who would be left without their company. Would that be an unlawful quid pro quo? No, because the president, A, believed it was in the national interest, but B, he believed that his own election was essential to victory in the Civil War. Every president believes that. That’s why it’s so dangerous to try to psychoanalyze a president, to try to get into the intricacies of the human mind. Everybody has mixed motives, and for there to be a constitutional impeachment based on mixed motives, would permit almost any president to be impeached.
In his complaint, Dershowitz argues that CNN’s summary of his argument excluded the part where he addressed illegal quid pro quos. Instead, claims the suit, CNN ran with a takeaway that libeled the professor, as it “exploded into a one-sided and false narrative that Professor Dershowitz believes and argued that as long as the President believes his reelection is in the public interest, that he could do anything at all — including illegal acts — and be immune from impeachment.” Nor was the abridgment accidental, claims the suit, noting that anchors Jake Tapper and Wolf Blitzer had included the “illegal” part in their coverage.
The suit cites comments by host John Berman and a CNN.com essay by commentator Paul Begala to support his defamation claims.
Speaking of omissions, the suit is silent on how widely Dershowitz was panned for his argument. “Absurd and outrageous”; “inane”; “Alan Dershowitz for the Defense: L’État, C’est Trump”; “crazypants bonkers.”
And CNN’s people were by no means the only ones to reach the allegedly defamatory conclusion:
Jeffrey Pyle, an attorney with Prince Lobel Tye LLP, tells the Erik Wemple Blog that CNN is covered by the fair report privilege: “Reporters are entitled to protection from defamation liability if they provide a ‘rough and ready’ summary of arguments, statements, and testimony given during such a proceeding. They are not required to include the full context of everything said in a statement so long as the overall coverage is fair and accurate,” argues Pyle.
To advance his argument against CNN, Dershowitz’s complaint — signed by Florida attorney Brian Rodier — cites Masson v. New Yorker Magazine, Inc., a piece of litigation that prompted a public debate over proper quotation. Jeffrey Masson, a former projects director at the Sigmund Freud Archives, alleged that journalist Janet Malcolm had fabricated passages attributed to him in a two-part 1983 New Yorker profile — passages that made him look like an overweening jerk. Alfred A. Knopf, Inc., published the profile in book form.
There were more than 40 hours of recordings at issue, and the litigation wore on for a decade. One review of the book noted the centrality of Malcolm’s quotes: “Masson the promising psychoanalytic scholar emerges gradually, as a grandiose egotist — mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool. But it is not Janet Malcolm who calls him such: his own words reveal this psychological profile — a self-portrait offered to us through the efforts of an observer and listener who is, surely, as wise as any in the psychoanalytic profession.”
A district court tossed the case on summary judgment, and an appeals court affirmed the ruling. It then landed at the Supreme Court, which reversed those decisions in 1991. “Deliberate or reckless falsification that comprises actual malice turns upon words and punctuation only because words and punctuation express meaning. Meaning is the life of language. And, for the reasons we have given, quotations may be a devastating instrument for conveying false meaning,” noted the opinion by Justice Anthony M. Kennedy. (It also cites the review passage quoted above.) Juries in 1993 and 1994 indeed found that some quotations were false, though they concluded that Masson hadn’t met the high-bar “actual malice” standard, which requires public figures to prove that damaging and false statements were issued with knowledge of their falsity or with reckless disregard of truth or falsity.
The Masson ruling, argues Dershowitz’s suit, birthed a “broad” legal wake that “unequivocally denies first amendment protections to a media organization that takes deliberate and malicious steps to change the meaning of what a public figure has said.”
Asked about the Dershowitz complaint, First Amendment attorney Ted Boutrous responded, “Give me a break!” Clay Calvert, a media-law expert at the University of Florida, takes exception to Dershowitz’s citation: “Masson was about fabricating quotes and altering quotations and putting words in someone’s mouth, not editing and omitting content. Editing largely is protected as a matter of journalistic judgment.”
To step out of the Masson weeds: Dershowitz is precisely the sort of fellow for whom the Supreme Court inaugurated the “actual malice” standard in the 1964 case New York Times v. Sullivan. He felt that people had misconstrued his beloved constitutional argument in the impeachment trial. Well, as a fully empowered public figure — and legendary lawyer — he possesses all the requisite instruments to rebut all these alleged scoundrels. In fact, he did just that: His tweets protesting the alleged distortion of his argument got enough attention that Politico wrote a story on them.
Senate Minority Leader Charles E. Schumer said this about Dershowitz’s complaints: “I hear he’s correcting it on TV today. That seems to be Mr. Dershowitz’s pattern. He gives a statement on the floor and then spends the next day correcting it. What a load of nonsense.”
Plus: A guy known for his appearances on “Hannity” should know better than to sue just because he got roughed up a bit on cable news.
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