A group has put out a new ad on TV about Donald Trump and his incompetent response to the pandemic, contrasting his various statements with the reality.
The Trump campaign does not like the ad and is suing to get it removed from the airwaves. Mark Joseph Stern writes that these lawsuits will undoubtedly fail but the point is not to win but to intimidate TV stations with the cost of defending themselves.
The possibility of a lawsuit is a more substantial menace. Trump’s campaign accuses stations of broadcasting “false information” and reserves its right “to pursue all legal remedies available.” That translates to a defamation suit. Stations will have to devote significant time, resources, and money to fight off any legal action, but they will probably prevail. The First Amendment was designed to safeguard political speech. It requires public officials to prove that their critics knowingly lied, or acted with reckless disregard for the truth, to win defamation suits. The Supreme Court has even granted constitutional protections to outright lies, holding that an “interest in truthful discourse alone” is not “sufficient to sustain a ban on speech.” Following SCOTUS’s lead, lower courts have invalidated state laws that penalize knowingly false statements made by political campaigns.
Put simply, politicians and their allies have a First Amendment right to stretch the truth when smearing their opponents, and this right also shields outlets that carry their smears. If the Trump campaign does sue broadcast stations for airing Priorities USA’s ad, it will, in all likelihood, lose. It would lose even if the ad peddled an outright falsehood rather than a tendentious recitation of the facts. But its suit would still compel stations to spend sums of money defending themselves in court.
And therein lies the true danger here: not that stations will actually lose in court, but that they grow so afraid of legal action that they self-censor. Trump is already trying to scare reporters out of covering him accurately; he has threatened to sue several news organizations, including CNN, and his campaign filed a frivolous libel suit against the New York Times. Media outlets are already on alert that Trump might draw them into expensive legal battles. In light of Wednesday’s letter, TV stations are also now aware of that risk. They may refuse to run ads that contain factually debatable criticisms of the president for fear of a costly lawsuit. Meanwhile, they will all continue to give airtime to the president’s incessant lies, because they are newsworthy. Trump can use the power of the pulpit to tilt the playing field in his favor. He could successfully monopolize the marketplace of ideas in the midst of his reelection campaign.
The Trump campaign’s cease-and-desist letter closes on a note of unintentional comedy, declaring that “we will not stand idly by and allow you to broadcast false, deceptive, and misleading information concerning President’s Trump’s healthcare positions without consequence.” In fact, no one lies about Trump’s “healthcare positions” more than Trump himself: The president routinely pretends to support protections for preexisting conditions that his administration is currently fighting to overturn. If TV stations could not broadcast false claims, they would never air a single Trump speech. For better or worse, Trump has a right to manipulate the truth to his political advantage. What he cannot do is gag his opponents when they try to punch back in kind.
People with deep pockets often sue just to financially ruin the defendant even if the latter wins the case. This can often lead to an insidious form of self-censorship.
Why are they bothering?
Pretty much everyone with internet access has seen it.
chigau@#1:
Why are they bothering?
Pretty much everyone with internet access has seen it.
Because ageing boomers haven’t heard of the “Striesand Effect”
Rightly or wrongly, I think a lot of people -- particularly older people -- see stuff on TV as being more credible than stuff on the internet.
Lawsuits should be like search warrants. The claimant or plaintiff should have to appear alone before a judge and prove there’s a case, the suspected defendant not have to waste time or money at the first stage. It would stop nuisance suits like thus because everything in the ad is demonstrably true.
Mano, based on its headline, I clicked on your article with a sinking feeling that there was a new development in this story. But no.
“Threatens to sue” is not the same as “sues” — the article you link to doesn’t say what you claim it says.
Sending a cease-and-desist letter is plenty bad. Filing an actual suit would lift it to an even higher level of badness.
When I first heard about the “baby boom”, the years were 1945 to 1955.
Meanwhile, I have received a postcard with “President Trump’s Coronavirus guidelines for America”
Column: Has Trump even read his own ‘Coronavirus Guidelines for America’?
I am POed about this. The postcard has emblems implying sponsorship from the White House and the CDC. Why does it specify the president by name? During an election year? This looks more like campaign material than technical advice from a government agency. And apparently someone at the CDC thought this was appropriate.
On top of which, Trump has demonstrated repeatedly that he is the very last person you should be looking to for advice on dealing with this crisis.
This deserves the response given in Arkell vs Pressdram.
“We note that Mr Arkell’s attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off.”
I don’t see how the Trump Campaign has standing to sue anyone over a video compilation of Trump’s public remarks. The judge ought to whack their lawyers over the knuckles with a ruler -- they know better and are wasting the court’s time trying to obscure the issues.
Between that and this -- https://twitter.com/realDonaldTrump/status/1243904684257091585 -- I’m curious if the Second Amendment fetishists have anything to say about this administration’s constant attacks on the First.
brucegee1962 @#5,
I have corrected the title. Thanks.
Odd that the article doesn’t mention anti-SLAPP statutes. The Trump campaign wouldn’t just lose in states that have them; they would have to pay the defendants’ costs.
Or is there some reason that anti-SLAPP wouldn’t apply?
Owlmirror,
There is no federal anti-SLAPP legislation. Only some states have passed them and these vary in what they do. The defendant is still on the hook for the initial defense nd can only recoup much later if their anti-SLAPP argument wins. So it is still difficult.
One would hope the costs of defending such a frivolous or baseless suit could limited via summary judgment, or by the threat of sanctions under Rule 11 of the Federal Rules of Civil Procedure: https://www.law.cornell.edu/rules/frcp/rule_11.
Welcome to Trump’s/Putin’s/Shi’a America