Did Donald Trump miss the news? Under Chris Licht, CNN’s new chairman and CEO, the network is embracing middle-of-the-road newscasting and has parted ways with high-profile staffers who spoke in blunt terms about Trump’s behavior in office.
Trump is seeking $475 million in punitive damages. Like other Trump lawsuits, this one lacks substance — more bluntly, it’s garbage — with its only utility being as a guide to this country’s wide-ranging First Amendment protections. CNN, in earlier correspondence with Trump excerpted in the legal filing, told the former president’s counsel, “While we will address the merits of any lawsuit should one be filed, we note that you have not identified a single false or defamatory statement in your letter.”
Although Trump’s financial demands run to nine figures, the document behind them is a flimsy 29 pages. It takes issue with statements aired on CNN that accuse Trump of pushing the “big lie” and that characterize him with the “false ... and defamatory labels of ‘racist,’ ‘Russian lackey,’ ‘insurrectionist,’ and ultimately ‘Hitler.’ ” The most facially laughable of these, of course, is “Russian lackey,” which is not only an innocuous put-down but also rests, in part, on one of the most infamous moments in U.S. diplomatic history — when then-President Trump sided with Russia over U.S. intelligence regarding Russian interference in the 2016 presidential election.
The other allegedly “defamatory labels” are no such thing. Here are a few claims in the complaint, followed by explanations as to why they aren’t defamatory:
· Psychiatrist Allen Frances told then-CNN host Brian Stelter in August 2019, “Trump is as destructive a person in this century as Hitler, Stalin and Mao were in the last century.” Frances also said: “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. It’s crazy for us to be destroying the climate our children will live in. It’s crazy to be giving tax cuts to the rich that will add trillions of dollars to the debt our children will have to pay. It’s crazy to be destroying our democracy by claiming that the press and the courts are the enemy of the people.” Trump argues in his complaint that PolitiFact cited part of Frances’s statement as a “Pants on Fire” falsehood.
This was a dark moment for CNN. Stelter later admitted that he should have challenged Frances (he cited technical problems, saying he hadn’t heard the statement). But the unspecific nature of the commentary and the way it’s couched — that Trump “may be” responsible for the deaths — place it in the realm of rhetorical hyperbole. Shameless commentary isn’t always libelous. “I’m reasonably confident that a court would rule that, taken in context, that passage is an expression of opinion by Dr. Frances about the human toll of policies Trump pursued, which is protected by the First Amendment,” Lee Levine, a longtime media defense attorney, tells me by email.
· House Democrats in March 2019 likened aspects of Trump’s rise to Hitler’s, as CNN reported then. According to the suit, “the ‘reporting’ is nothing more than self-serving pronouncements by political opponents of [Trump] and their news proxy (and political participant), CNN.”
Read the statements in question, and it’s clear why they’re not remotely defamatory. For instance, House Majority Whip James E. Clyburn (D-S.C.) said, “Adolf Hitler was elected chancellor of Germany. And he went about the business of discrediting institutions to the point that people bought into it.” Clyburn also said: “Nobody would have believed it now. But swastikas hung in churches throughout Germany. We had better be very careful.”
To defame someone, you must make a false statement that purports to be a fact about that person. In this instance, Clyburn is speaking to historical parallels and political trends, not launching the sort of ad hominem attacks necessary to win a defamation claim.
· CNN host Jake Tapper said on a show in January 2022: “There is a reason Trump was in Arizona, to push the legislature to disenfranchise the state’s voters based on all of his deranged election lies.”
Those italics are in the lawsuit, apparently seeking to highlight the defamatory sting of Tapper’s remarks. Except they are no such thing. It’s well established that Trump has been told, again and again, that his claims about a stolen election are false. His persistence in airing these claims suggests that he’s lying, though Trump’s lawyers have said that he “subjectively believes that the results of the 2020 presidential election turned on fraudulent voting activity in several key states.”
Even if Trump believed his own statements, however, Tapper’s commentary would be protected as hyperbole — a valued commodity in a democratic society.
CNN’s lawyers will also likely argue that the challenged statements in the suit are, to a large extent, protected as assertions of opinion — the very doctrine that Trump deployed to get out of a lawsuit brought by a Republican strategist in 2016.
The complaint also argues that CNN has treated Trump’s claims of a stolen election differently from various claims by Democrats in recent election cycles. Set aside for a moment the fact that Trump’s claims have been more persistent, more egregious and more impactful, as we all saw at the Capitol riot of Jan. 6, 2021. Even if CNN had treated Democratic claims of voter fraud more favorably, that would be protected First Amendment activity. Just think what would happen to Fox News if slanted reporting amounted to libel.
· Licht held a conference call in June 2022 in which he expressed low regard for the wording “big lie,” a term with Nazi origins. “Since then,” reads the complaint, “CNN’s on-air personalities — including John King, Jake Tapper, John Avlon, Brianna Keilar, and Don Lemon, among others — have continued to use the phrase in describing [Trump and Trump’s] questions of election integrity despite an apparent admonition from their Chief Executive Officer.”
So what? This is a management issue for CNN, not a legal one.
Calling presidents liars, even when they’re honest, is a great American tradition. Trump, the greatest liar in American political history, stands no chance of upending it.