The last time I spoke to Michael Cohen, Donald Trump’s erstwhile attack-dog attorney, was 10 years ago, when I was deputy editorial page editor of USA Today. Over the phone, Cohen told me that Trump was upset about a column written by USA Today founder Al Neuharth.
The opinion piece called Trump “a clown who loves doing or saying things, no matter how ridiculous they may be” and, to boot, a less-than-dedicated fan of the New York Yankees. Cohen threatened to sue for defamation; if I recall correctly, he threw around the figure $100 million.
As it turned out, Trump didn’t file a lawsuit. Instead, he fired off a tweet calling Neuharth a “lightweight” and saying that he was canceling his subscription to USA Today.
This decade-old episode came to mind when I heard that Trump had filed suit last week against CNN, claiming defamation and seeking $475 million in punitive damages. The case fits a pattern, one in which the legal principles are well established, but Trump doesn’t think they apply to him.
The suit is less notable for its merits, which are flimsy at best, than it is as a guide to the robust First Amendment protections for political speech. Throughout history, American presidents have been subject to vehement, and often vicious, personal attacks. It goes with the territory.
Yet before, during and after his presidency, Trump has employed threats of lawsuits, and occasionally actual lawsuits, in an effort to intimidate news organizations and authors. These suits typically get tossed out of court, but not before the defendant has racked up legal fees and gone through the hassle of responding to the claims.
The 29-page complaint against CNN is the latest example. Filed Oct. 3 in a federal court in Florida, it asserts that the network and its commentators defamed Trump by calling him names, comparing him to Adolf Hitler, all “for the purpose of defeating him politically.”
Experts in First Amendment law say Trump’s chances of prevailing are next to nil. For one thing, the law sets a higher standard for public figures to win defamation claims, in large part because the famous can easily rebut the claims through ready access to media. Trump is one of the world’s most famous people and he has no problem getting his views shared. He and his lawyers must demonstrate not just that a defamatory statement was false, but that it was made with “actual malice” — knowledge of its falsity or with reckless disregard for the truth.
Curiously, the Trump lawsuit simultaneously asserts both that it has met the “actual malice” standard and that the standard “does not — and should not — apply” in cases where a news organization is broadcasting political propaganda. (If propaganda were the standard, pro-Trump networks such as One America News would be in big trouble.)
The suit argues that CNN has tried to taint Trump with false and defamatory labels such as “racist,” “Russian lackey,” “insurrectionist” and “Hitler.” There are reasons for the first three allegations. Trump has a history of making racist comments, most recently about his own transportation secretary, Elaine Chao; he famously kowtowed to Vladimir Putin at a Helsinki press conference; and the House of Representatives impeached him for inciting the Jan. 6 riot at the Capitol.
The Hitler analogy is somewhat more problematic. Trump’s complaint cites a CNN interview in 2019 with psychiatrist Allen Frances, who told host Brian Stelter that Trump is “as destructive a person in this century as Hitler, Stalin and Mao were in the last century” and “may be responsible for many more million deaths than they were” because of his climate denialism and other policies.
This was over the top. Hitler was the most heinous figure in modern history, and Nazi comparisons should be avoided because they trivialize the enormity of the Holocaust. But while Trump’s complaint about Frances’ comments might not be completely meritless, the comments are highly defensible in court by CNN as a form of protected opinion known as rhetorical hyperbole. In any case, it would be hard to establish that one of the most reviled — and loved — figures in the world could have his reputation damaged in a significant way by a single interview.
CNN is expected to seek summary judgment. But just because the lawsuit should be dismissed doesn’t necessarily mean it will be. The case was assigned to a Trump-appointed federal judge in South Florida, where another Trump-appointed judge has issued rulings surprisingly favorable to the ex-president in the litigation involving the Mar-a-Lago classified documents.
Rather ironically, Trump filed the suit even though CNN’s new CEO, Chris Licht, has embraced more centrist reporting, parted ways with Stelter, and discouraged the use of the Nazi-era “Big Lie” terminology in reference to Trump’s repeated false claim that he won the 2020 election. This suggests the suit is less about winning than it is about rallying supporters, raising money, and roughing up CNN and other news outlets before the 2024 presidential campaign.
Would Trump really want, or benefit from, precedents that would make it easier to sue for defamation? Of course not. After all, Trump insulted hundreds of people, places and things on Twitter between June 2015, when he declared his candidacy for president, and Jan. 8, 2021, when Twitter permanently barred him.
One of his targets is Cohen, his one-time fixer turned TikTok star who spent more than a year in federal prison for, among other things, his role in the Stormy Daniels hush-money scandal. After Cohen parted ways with him, Trump called his former attorney “a bad lawyer and fraudster,” “a convicted liar” and “a ‘Rat’” who is “totally discredited!” and “committed perjury on a scale not seen before.”
For Trump to seek $475 million because some people said mean things about him on CNN is absurd. You might even call it clownish.
Bill Sternberg is a veteran Washington journalist and former editorial page editor of USA Today.
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