Now sample the coverage of the suit’s brusque dismissal by a New York state Supreme Court judge. Though the Times, the New York Post, the Hill and the Daily News are among those that have published write-ups, who cares at this stage? The point of the complaint was always to get publicity. At the time of filing, then-President Donald Trump was facing criticism for his early handling of the coronavirus, so why not sue someone? The attack against the New York Times was part of a blast against opinion pieces in three outlets that Trump routinely slammed — the Times, The Washington Post and CNN.
The merits of the case just barely merit mentioning. The eight-page complaint took aim at an op-ed by former Times executive editor Max Frankel that was published on March 27, 2019. Headlined “The Real Trump-Russia Quid Pro Quo,” the piece argued that the search for the smoking gun of conspiracy between the Trump campaign and Russia was beside the point. “There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions,” wrote Frankel.
It would take a blue-ribbon commission of lawyers to find an op-ed less worthy of a legal challenge. Frankel drew on publicly available information about U.S.-Russia relations, stopped short of alleging illegal behavior and wrapped things up with a Trumpian reference: “Call it the art of the deal.”
Judge James E. d’Auguste dispensed with the whole mess in a spare three-page ruling. The musings in Frankel’s op-ed, wrote the judge, were “nonactionable opinion,” which is to say, one man’s judgments and not false statements capable of defaming a person or an organization. Speaking of which, d’Auguste wrote that the complaint didn’t meet the most basic element of a defamation — that it be “of and concerning” the Trump campaign. “Here, the focus of Mr. Frankel’s column was the former President’s associates and family members, not the Trump campaign itself,” wrote the judge.
Nor did the complaint satisfy the “actual malice” standard of U.S. defamation law, ruled d’Auguste. That standard requires that the plaintiff prove the defendant acted with knowledge that the statements were false or with reckless disregard for the truth.
“The court made clear today a fundamental point about press freedom: We should not tolerate libel suits that are brought by people in power intending to silence and intimidate those who scrutinize them. We are pleased that the court has delivered that message powerfully today,” said David E. McCraw,
senior vice president and deputy general counsel of the Times.
In arguing their motion to dismiss, attorneys with the Times’s legal department — McCraw, Dana R. Green and Alexandra-Perloff Giles — requested that the court award the newspaper legal fees on account of the “meritless, unethical, frivolous, and vexatious” suit. “Sanctions may not be enough to end this assault on press freedom and independent news organizations, but turning a blind eye to the realities of what the President and his enablers are doing here will only encourage them to continue the assault,” wrote the attorneys. Despite the slam-dunk ruling, d’Auguste denied the Times’s petition on this front.
“We’re disappointed that sanctions were not awarded,” McCraw told the Erik Wemple Blog in an email. “We thought we made a good case that the lawsuit had no legal merit and was intended primarily to discourage criticism of a sitting president and to make a political statement. But sanctions are rarely granted by the New York courts.”
The campaign’s suit against CNN met with dismissal in November. The complaint against The Post is pending; The Post has filed a motion to dismiss, which is awaiting a ruling from a federal court.
The lawyer for the Trump campaign in this matter is Charles Harder, who represented Hulk Hogan (Terry Bollea) in his invasion-of-privacy suit against Gawker Media — an action that resulted in the company’s eventual bankruptcy. A bio page for Harder at his firm cites various legal conquests, including the Gawker litigation as well as “numerous seven-figure and eight-figure settlements on behalf of his plaintiff-clients in recent years, and favorable settlements and defense verdicts on behalf of his defendant-clients.”
We’ll see whether Harder updates the page to include his “advancing a trio of preposterous defamation claims against major news outlets that provided a famous, powerful and mendacious client with talking points for a long-running campaign against the free press in the United States.”