Trump Says It’s Defamation To Call His Lying About The Results Of The 2020 Election ‘The Big Lie’

Donald Trump, whose supporters still pretend is a free speech" champion, has regularly been known to sue news organizations that are mildly critical of him. You may recall that back in 2020 he hired notorious-lawyer-for-suing-media-companies (yes, he once was the lawyer in a case against us), Charles Harder, and sued both the NY Times and the Washington Post. The NY Times case was dismissed easily. The Washington Post case appears to somehow still be alive, though not much has happened in a while. It was, initially, assigned to Judge Ketanji Brown Jackson, who has since received two separate promotions, which took her off the case. Somewhere along the way, Harder left the case and was replaced by Harmeet Dhillon, who has been a favorite lawyer of perpetually aggrieved culture warriors.

Now Trump is again threatening to sue media orgs - but not via either Harder or Dhillon. Instead, he's hired James Trusty of the formerly reputable Ifrah Law firm in DC to threaten CNN with a defamation lawsuit for... calling Trump a liar. The threat letter is all kinds of nonsense, but the underlying basic claim undermines the very argument of the lawsuit. It claims that you can't call Trump a liar because he believes everything he says.

In this instance, President Trump's comments are not lies: He subjectively believesthat the results of the 2020 presidential election turned on fraudulent voting activity inseveral key states.

Yeah, so here's the thing: by noting that it's subjective as to whether or not he's lying, that means it's an opinion. And an opinion is not defamation. Only statements of fact are. So, we're already kind of off to a bad start.

But, more importantly, for the most part, calling someone a liar is not defamatory. There are lots of cases where it's been tried. And mostly failed. A few years back, there was an interesting law review article tracing the history of the defamatory impact" of calling someone a liar." And it found cases going back centuries that say that calling someone a liar isn't defamatory. Again, that's not to say it's universally the case, but in the rare cases where the word liar" was found defamatory, there are usually some pretty distinguishing characteristics that imply something much more nefarious - or, more commonly, imply some level of specific knowledge, rather than just commenting on publicly available information.

This is... not that.

Perhaps the most well known case on this question is Milkovich, It more or less set the modern standards (though some have argued they're a bit muddled) for separating fact from opinion in determining what counts as defamation and what does not. It requires that the claims be specific, rather than loose, figurative, or hyperbolic." But the references cited in this threat letter are pretty clearly opinion, figurative, or rhetorical speech.

And that's not even getting to the question of truth.

Whether or not Trump subjectively believes" something is really not the issue. CNN reporters may subjectively believe he's lying. And saying so is their opinion - which is not defamatory.

And that's not even touching on the question of actual malice.

Donald Trump is a public figure. A very public figure. To win a defamation case, he needs to prove actual malice. And as we've said many, many times before, that does not mean that CNN hates Trump." It means Trump will need to prove that CNN knew or at least greatly suspected that Trump was not lying. And, um, that's not going to happen.

Perhaps there's some statement in the 282 page (?!?!?) threat letter (with exhibits...) that might somehow meet the definition of defamation, but if there was, you'd think that super lawyer James Trusty would, you know, lead with that, and not lead with claiming it's defamation to call Trump a liar because he actually believes the false things he says.

Either way, this is laughable. And embarrassing for both Trusty and Trump.

As mentioned above, CNN is estimated to have used the Big Lie" phrase or tocharacterize President Trump as lying roughly 7,700 times during broadcasted televisionshows and repeats of those shows. These defamatory comments have continued even afterthe new CEO of CNN apparently urged production teams to stop.

Accordingly, I hereby demand on behalf of President Donald Trump that CNN (1)immediately take down the false and defamatory publications, (2) immediately issue a fulland fair retraction of the statements identified herein in as conspicuous a manner as theywere originally published, and (3) immediately cease and desist from its continued use ofBig Lie" and lying" when describing President Trump's subjective belief regarding theintegrity of the 2020 election.

I mean, that's just pathetic and weak. Have some self-respect.

Assuming this actually proceeds to a lawsuit, which seems decently likely, it's unlikely to work out very well for Trump (or Trusty).

In the meantime, apropos of nothing at all, I'll just mention again, that every state should have a strong anti-SLAPP law, and we need a federal anti-SLAPP law as well. You know, like the one in Texas, that Donald Trump used to get out of a lawsuit by Stormy Daniels, after she sued Trump for... calling her a liar.

Just for the hell of it, I'll end this post by quoting Charles Harder's argument on behalf of Donald Trump. Might be fun for CNN to hang onto this for a future filing:

It does not matter that the President used strident language (nonexistent,"con job," and fake news") in expressing his opinion doubting the veracity ofPlaintiff's allegation rather than using more genteel terminology. Rhetoricalhyperbole is not actionable as defamation. Neely v. Wilson, 418 S.W.3d 52, 83-84(Tex. 2013). Courts throughout the United States have routinely held thatterminology similar to that used by the President is constitutionally protected opinionand non-actionable. See e.g., McCabe v. Rattiner, 814 F.2d 839, 843 (1st Cir. 1987)(scam" not defamatory); Oilman v. Evans, 750 F.2d 970, 987 (D.C. Cir. 1984) (enbanc) (political columnist labeling a political figure a Marxist" not defamatory);Letter Carriers v. Austin, 418 U.S. 264, 282-83 (1974) (use of term scab" in labordispute not defamatory); Buckley v. Littell, 539 F.2d 882, 893-94 (2d Cir. 1976)(labeling political writer a fascist" not defamatory); Greene v. State, 21 So.3d 348,352 (La. App. 2009) (labeling state employee pathological liar" not actionable).

Any finding by the Court that the Comment has a defamatory meaning and isnot protected opinion could have a chilling effect on political debate throughout theUnited States forever. Politicians frequently express their opinions about theirpolitical adversaries, often in strident and blunt terms. In 1964, for instance, LyndonJohnson ran an advertisement that implied his opponent, Barry Goldwater, wouldstart a nuclear war. John Kennedy campaigned against incumbent Vice PresidentRichard Nixon in 1960 based on claims of a missile gap" with the Soviet Union thatturned out to be grossly misleading. Bill Clinton allegedly misstated the budget deficit in his 1992 campaign against George H.W. Bush. None of these statementswere anything more than opinions, and none could or should form the basis of adefamation suit.

Indeed, since the founding of our republic, politicians have often expressedtheir opinions by branding their opponents as liars." Doing so does not subjectevery such politician to a defamation claim. President Trump himself has expressedhis opinions regarding multiple adversaries, sometimes referring to his opponents bycolorful names such as Lyin' Ted" and Crooked Hillary." A defamation standardthat turns typical political rhetoric into actionable defamation would chill expressionthat is central to the First Amendment and political speech.

Emphasis in that final paragraph added by me.