The True Danger of the Trump Campaign’s Defamation Lawsuits

Joshua A. Geltzer, Neal K. Katyal

The Atlantic - Mach 11, 2021

The president will likely lose his cases against The New York Times, The Washington Post, and CNN. But he may inflict extraordinary damage nevertheless.

Donald Trump’s reelection campaign is launching a legal war against the free press. In the past two weeks, while Americans worried about the coronavirus, the Trump campaign has sued The New York Times, The Washington Post, and CNN. These suits are, legally speaking, frivolous. They pose no danger in court, where they’re all but certain to fizzle and fail. But don’t let that disguise their import. Outside of court, these lawsuits are a real danger to democracy. They abuse the American justice system to attack and intimidate America’s journalists.

Each lawsuit alleges that a particular article defamed the Trump campaign by portraying it as in cahoots with Russia. The standards a plaintiff must meet to show defamation in these sorts of circumstances—when discussing a public figure’s role in an issue of public concern, such as Trump’s relationship to Russia—are very high. Relying on the First Amendment’s protection for speech, the Supreme Court held in 1964 that a public figure alleging defamation must prove, with clear and convincing evidence, that the defendant made a defamatory factual statement knowing it to be false or showing reckless disregard for the truth. In the half century since, meeting that standard has always been difficult —just as the Court intended, so that vigorous expression about such figures could flourish.

Two telling clues reveal these suits to be frivolous. First, all three lawsuits target opinion pieces—not news reports asserting factual claims. While in theory an opinion piece could meet the Supreme Court’s high bar for defamation of a public figure, in practice this is very hard to imagine. Second, the statements alleged to be defamatory in the three suits haven’t been proved false—rather, they’ve been vindicated. The Times piece said Russia helped Trump in 2016 because it anticipated pro-Russia policies if Trump won. The Post piece said Trump invited foreign election interference in 2020. The CNN piece said Trump has deliberately not taken steps to prevent the solicitation of foreign election interference in 2020. All of these statements have been corroborated—the first by Robert Mueller’s report, the second by Trump’s own words, and the third by Trump’s own (non)actions.

But even if these lawsuits are unlikely to succeed, they can nevertheless do great harm. As Trump runs for reelection, the campaign may use these suits to boast that Trump is fighting the media, or what he calls “fake news.” The intention, it seems, is to scare away media outlets from publishing opinion pieces that use particularly critical words to describe his relationship with Russia. These tactics likely won’t work against the Times, the Post, or CNN. But think of smaller, local media outlets—whether newspapers, radio stations, TV news programs, or websites—that already are struggling to stay afloat as hundreds of other media outlets go under nationwide. For them, the prospect of having to litigate a defamation suit against the behemoth of the Trump campaign is intimidating—perhaps even prohibitively intimidating. An editor or lawyer at those outlets may pause on a particular adjective used to describe Trump’s relationship to Russia, think about the suits against the Times, the Post, and CNN, and then think really, really hard about softening that language. Going one step further, an individual writer may pause before even drafting words critical of Trump and his family—a likely effect of a November 2016 lawsuit filed by Melania Trump against a 70-year-old political blogger who writes from his Maryland townhouse.

That hesitation alone would amount to a severe blow to the free press that Americans rightly cherish and that the First Amendment protects. But Trump’s project seems even more malevolent. As he seeks reelection in the face of dismal approval ratings and widespread unpopularity, he’s given every indication that he will try to weaponize the organs of the government to help him. Trump already tried to exploit American military aid and diplomacy in order to damage a political rival via Ukraine. He has already asked his attorney general to investigate the very investigators who identified and prosecuted criminal activity by high-ranking figures associated with his 2016 campaign. And he already removed and replaced his acting director of national intelligence when a top official working for him briefed Congress honestly on 2020 election interference, installing a politically minded sycophant instead.

The courts—both federal and state—are harder for Trump to manipulate than the executive branch is. But in filing these suits, Trump seems to be trying to turn America’s justice system into a campaign tool. While the cases remain pending, Trump can brag to his supporters and scare media outlets, all without ever getting a judge to accept a single legal argument. What’s more, when the suits eventually fail, Trump can campaign against the courts and judges themselves, claiming—falsely—that the rulings against his campaign are more evidence that the system is somehow “rigged” against him with “Obama judge[s]” and the like.

Usually, any danger associated with lawsuits is that they’ll land a blow in court. The law—as usual—isn’t on Trump’s side. The danger with his campaign’s new lawsuits isn’t that he will win in court. It’s that, on the road to defeat, he’ll find ways to claim that he’s winning, while causing the same institutional damage to America’s courts that he’s wreaked in the executive branch.