Judge Who Ruled For Trump While Angling For A Trump Appointment Lets Trump’s BBC Lawsuit Proceed

We've now written a few times about Donald Trump's obvious bullshit SLAPP suit against the BBC. If you don't recall, the BBC ran a Panorama documentary about January 6th. It ran only in the UK and Trump said nothing about it when it aired. Many months later, some MAGA dipshits on social media start complaining that the documentary misrepresented Trump - after an internal BBC analysis that criticized the editing on the documentary leaked. Specifically, they complained that it spliced together two portions of Trump's speech to the MAGA faithful, delivered nearly an hour apart, in a way that made it seem like he was more directly urging them to storm the Capitol than he did in context.

It was a blatantly weak SLAPP case for a variety of reasons with the biggest one being that they were suing in Florida and, as you'll recall from the paragraph immediately preceding this one, the program was never aired in the US. Trump got around this by claiming that VPN usage increased in Florida during the time period when the documentary was shown, and that could indicate that people in Florida were downloading VPNs to watch the video in the UK. At the time, famed First Amendment lawyer Bob Corn-Revere told CNN:

The suit does not have any legal basis, either on defamation or jurisdictional grounds," said Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression.

This is nothing more than the president's latest effort to intimidate media companies that he sees as adversarial to his administration," he said.

And, to be honest, the lawsuit had mostly been backfiring on Trump, to the point that it almost felt he was trying to get out of it. That was because the original complaint said that this documentary damaged Trump's business prospects, which is kinda laughable considering he's added billions of dollars to his net worth while being President. So, because the court allowed for some early discovery, the BBC said it wanted to review Trump's business records, to which Trump flipped out. His lawyers tried to file an amended complaint removing the part about it harming his business, and saying it just harmed his reputation (but still demanding the same $10 billion). The magistrate on the case, Enjolique Lett, had said that Trump's business records were fair game and that he had to submit to a deposition.

Trump skipped the original deposition date, claiming he was busy with official matters (he went to a campaign rally) and has tried to push his deposition off as long as possible, but Magistrate Judge Lett told him he needs to sit for the deposition by December 11th.

For what it's worth, Trump's lawyer, Alejandro Brito, had also tried to get the magistrate judge kicked off the case, but the (Trump-appointed) Article III judge who was initially assigned the case, Roy Altman, rejected that request.

But... in the interim, something else happened. In August, Judge Altman reassigned the case to a new federal judge, whom the Senate had just approved by a 51 - 46 vote. That new judge, Jeffrey Kuntz, had some controversy about his connections to Trump. You see, prior to being a federal judge, he was a Florida state appeals court judge. And, right around the time of the 2024 election, Donald Trump's equally ridiculous defamation lawsuit against the Pulitzer Prize board for giving the prize to news organizations that reported on Donald Trump's connections to Russia... landed in Jeffrey Kuntz's lap (on appeal, as part of a three-judge panel).

Jay Willis, at Balls & Strikes, covered the sketchy deal. Basically, Judge Kuntz told Senator Rick Scott to recommend him to Trump for a federal judgeship appointment. Then he got the Trump case. Rather than recusing himself, he took the case, wrote the ruling in Trump's favor, and then... got nominated to the federal bench. Sketchy sketchy sketchy (Kuntz was actually one of two judges on that same panel who did basically the same thing):

Jeffrey Kuntz, a Florida appeals court judge who sat on the same three-judge panel as Artau, is also up for a federal judicial vacancy in the Southern District of Florida. Like Artau, Kuntz had reached out to Scott's office in November 2024 to throw his hat in the ring for a federal judgeship. Like Artau, Kuntz was then assigned to the Alexander panel. Like Artau, Kuntz did not recuse himself from the case, and voted in Trump's favor. And like Artau, Kuntz was invited by the White House Counsel's office to interview for a federal judgeship that same month.

The reassignment itself isn't particularly sketchy. It's how new judges get their caseload. But it does seem kinda problematic that a guy who already heard a Trump case while actively angling for Trump to give him a lifetime appointment immediately lands another sketchy Trump case.

All of that takes us to earlier this week when Judge Kuntz did what Judge Kuntz apparently does: taking a ridiculous SLAPP suit from Donald Trump, and allowing it to mostly move forward, despite the fact that every defamation law expert in the world knows this is a frivolous case (the only part Kuntz rejected was an even more ridiculous claim under Florida's Deceptive and Unfair Trade Practices" law, while allowing the defamation claims to move forward).

The opinion is deeply problematic on multiple levels. It starts out by noting that Donald Trump has sued a ton of media orgs, and that many of those suits (like the ones against CNN and Dow Jones) went nowhere, which (you know) should be a sign. But, you see, Judge Kuntz sees something special in Donald Trump, and claims that this case is different than all those other cases, because it wasn't just about a news entity reporting on a story" but rather the news entity created the story." Except... that's not accurate either. It's just how they edited the story and editing is still First Amendment-protected activity.

Judge Kuntz also claims that because the documentary was released (in the UK) the week before the 2024 election, it means that the BBC did so at the time it would have the most impact." Which, um, yeah. Isn't that how journalism is supposed to work?

Regarding the fact that the episode was only shown in the UK, Judge Kuntz seems quite taken by the fact that people from the BBC apparently emailed people in the US and suggested they watch the documentary:

Explicitly, Trump alleges BBC sent links to Americans with instructions on how to watch, including a link sent directly to a Florida resident. [FAC, Exs. E-G]. Implicitly, the subject matter of the Documentary involves then-candidate Trump, a Florida resident, with filming and interviews done in the United States. See generally [FAC, 31]. BBC aired the Documentary about a resident of Florida running as a Presidential candidate, one week from the election. BBC cannot then claim surprise at being haled into court in the Southern District of Florida."

But here's the thing, this already weak claim to establish a Florida jurisdiction is weakened even further if you actually look at the exhibits cited. It is not - as Trump and the judge claim - the BBC instructing Americans, including a Florida resident, how to watch the film. And it's not even them promoting the film. It's literally some people who worked on the film sharing a way to view it to two people who appear in the film.

It starts with someone from the production company (not the BBC) emailing the Shelby County Ohio Democrats" with information about the film, because someone from that group was interviewed in the documentary, and they wanted that person to be able to see themselves. Shelby County, Ohio, is notably not in Florida. And while the sender cc'd a BBC person, she appears to work for the production company, not the BBC. That company - October Films - is an independent production company that has made programs for a variety of properties. They are not the BBC. However, the sender does note that if the recipient wanted to see the program (on which they are apparently a guest) they would probably need to get a VPN to appear to be in the UK.

Now, the BBC person then does forward that email, but again not to anyone in Florida. Rather they send it, with a Dropbox link to a copy of the film for personal viewing, to someone at the Lincoln Project, the organization of another participant in the film, Rick Wilson (a founder of the Lincoln Project) who apparently does live in Florida. They mention, in passing, I would obviously also be grateful if you could forward to Rick." She then replies, cc'ing Wilson. So the only email Wilson got came from his own colleague, not the BBC.

So... this is hardly promoting the film to people in Florida. The leaps that Trump and the judge have to go through: a production team person (not with the BBC) emails someone in Ohio saying the film is going to debut, but because it's only in the UK, suggesting they'd probably need a VPN to watch it. A BBC person who was cc'd on that email then forwards it to someone at the same organization as someone else who appears in the film with a Dropbox link so they can see how it came out, suggesting that they could forward it to Rick Wilson (who appears in the documentary and happens to live in Florida).

It takes several astounding leaps to say that this creates jurisdiction in Florida.

Perhaps even more troubling, though, is the actual malice analysis. As we've discussed, Justice Clarence Thomas has been on a quixotic one-man war against the actual malice standard for quite some time. Since he started, the MAGA world has rushed to build up a rickety justification claiming that there is no basis for actual malice. And it appears that Judge Kuntz is one of the partisan acolytes of this view, based on his long whiney venting, claiming that actual malice is now being criticized (citing Clarence Thomas twice as evidence):

The Court acknowledges several recent criticisms levied against Sullivan. See McKee v. Crosby, 587 U.S. 1172 (2019) (Thomas, J., concurring in denial of certiorari); see also Berisha v. Lawson, 141 S. Ct. 2424 (2021) (Thomas, J., dissenting from denial of certiorari). It cannot be said that Sullivan is grounded in the original meaning of the Constitution, at least not in any meaningful sense. See McKee, 586 U.S. at 1173 (If the Constitution does not require public figures to satisfy an actual-malice standard ... then neither should we.").

Nor is Sullivan grounded in the history and tradition of the common law. Id. at 1176-77. Common law libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages. Id. In fact, historically the common law deemed libels against public figures to be more serious and injurious than ordinary libels. Id. at 1177 (citing 3 William Blackstone, Commentaries *124) (Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man").

It is logical then, that a public figure like the President of the United States should not be subjected to a heightened standard non-existent at the time of the Founding. Under Sullivan, the chief executive of the world's most powerful country could be subject to false and injurious statements without a remedy if he fails to satisfy a judge made standard that bears no relation to the text, history or structure of the Constitution[.]"

The problem is that Thomas's claims (and Kuntz's adoption of them) are (like so much of MAGA's understanding of history) a bunch of ahistorical nonsense. And the argument that the actual malice standard could leave the most powerful man in the world without a remedy" is equally ridiculous. The President has tremendous power (more than basically anyone else in the world) to get his own side of the story out. The lack of a legal remedy is not the lack of any remedy at all.

At least Kuntz eventually admits that, despite his and Thomas's nonsensical bellyaching, actual malice is still the standard under Supreme Court precedent for the time being. But he then proceeds to do one of the most ridiculous actual malice analyses I've ever seen. First, while every First Amendment lawyer in the world knows that actual malice does not mean with ill-will" but rather that the content was published knowing it was false or with reckless disregard" (a much higher standard than mere negligence) to whether it was true or false, Judge Kuntz makes the argument that maybe it can mean ill will.

First, he notes that the Eleventh Circuit - whose rulings set precedent for his own court - says directly that ill-will has zero bearing on actual malice:

It is worth noting that the Eleventh Circuit has held that [i]ll-will, improper motive or personal animosity plays no role in determining whether a defendant acted with actual malice.

But then he decides he can ignore that, because he believes that when the Eleventh Circuit said it plays no role" that the Eleventh Circuit (which binds him)... misspoke by taking too cursory" a glance at what it was citing.

Where Veritas simply quotes and reincorporates the Eleventh Circuit's footnote in Dunn, the Eleventh Circuit in Dunn relies on the Supreme Court to formulate its position that ill-will plays no role in determining actual malice. See Dunn, 193 F.3d at 1198 n.17. A cursory glance at the footnote shows that the court is citing to Masson v. New Yorker for support, quoting [a]ctual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from site or ill will." 501 U.S. 496, 510 (1991). It is unclear the extent to which the Eleventh Circuit interprets this to mean that ill-will or motive plays no role in the sense that it may never be raised in an actual malice nquiry. The Supreme Court in Masser was merely clarifying that the legal term actual malice" should not be confused with how the term malice" is understood in common parlance.

So, Judge Kuntz argues that Trump can actually use ill will as evidence of actual malice, so long as it's offered to show knowing falsity or reckless disregard.

It follows that Trump may plausibly allege actual malice through factual allegations of circumstantial evidence, such as ill-will, improper motive, or personal animosity, when such circumstantial evidence is probative of BBC's state of mind regarding their knowledge of falsity or reckless disregard for the truth.

In the business, this is what is known as motivated reasoning."

And from there, he suggests that regular negative coverage of Trump on the BBC shows... actual malice. Part of this is he claims that other programs on the BBC reported false" things (according to Trump) and even though it was different people at the BBC, that's enough. And he dings the BBC for responding that even if others at the BBC did say false things about Trump that doesn't mean that this documentary said anything false. Judge Kuntz seems practically offended by this:

Thus, Trump paints a picture that demonstrates the BBC has a record of allowing the publication of false statements in their portrayal of Trump. BBC asks the Court to put on blinders and treat the Panorama team as if they were blocked off from the rest of the organization, ignorant of everything else going on at BBC. At this procedural stage, the Court simply cannot ignore the circumstantial evidence presented. To do so would make it extremely difficult to ever prove a defendant's subjective state of mind in any defamation case.

Again, that's not how actual malice works!

Similarly, the BBC pointed out that the BBC's decision (frankly, a stupid one) to apologize to Trump after he got mad works against actual malice, because it suggests that once they were alerted to the complaint they moved to fix it. But the judge says that their slowness in doing so works against them. He leaves out the fact that Trump didn't get mad until many months after the doc aired (because he only got mad when culture warriors on social media dug it up):

BBC then argues that the apology militates against a finding of actual malice."...

In Hoffman, the court stated that it is significant and tends to negate any inference of actual malice on the part of the [defendant] that it published a retraction ... in the next day's edition of The Washington Post." Id. (emphasis added). That makes sense. In the 1970s, next day retraction was likely the fastest correction that could be issued for a printed publication. Today, retractions can be issued near instantaneously for online publications thanks to the internet. The Court acknowledges that media entities, like The Washington Post, or BBC, are not perfect, and make mistakes. However, it cannot be said that a retraction the next day is in the same ballpark as a retraction over a year later, and only after being threatened with legal action. The temporal distance here makes the retraction a weak indicator as to BBC's state of mind at the time of publication.

Again, the temporal distance at issue is wrong! The fact that it was a year later reflects that when they broadcast it, they thought it was fine (no actual malice). It's only when they were alerted to it that they made the apology. Thus, any temporal distance" has to be from the time they were alerted, not the time the documentary aired.

Basically, this entire ruling is a total mess. And, of course, Trump trumpeted the ruling as a big victory.

But, of course, as I noted up top, because of the Magistrate Judge's order... Trump might have to sit for a deposition that he very clearly does not want to sit for. So... it's no surprise that the day after the ruling, Trump objected to and appealed the magistrate's ruling. In it, he argues that the BBC is asking for way too much information about his businesses. He specifically does not want the records of membership applications to Mar-a-Lago to be subject to discovery:

First, the MAL Order erroneously permits the BBC to obtain six years of membership-application counts and initiationfee data from Mar-a-Lago Club, LLC (MAL")-a separately organized, non-party private club that appears nowhere in the operative pleading-on the flawed theory that, because the President meets with foreign leaders at the property, the club's commercial performance measures injury to his profession, occupation, and trade." That reasoning improperly revives, through a non-party, the entity-level economic-harm theory that the First Amended Complaint removed from this case.

It also claims that Trump will sit for a deposition, but objects to the demand that he do so by December 11th, saying he will do so in January, and wants the sanctions threat removed because he pinky swears he really will do the deposition in January.

Second, the Deposition Order does not merely require the President to sit for his deposition-an obligation he has never disputed. It warns of sanctions, including dismissal of the lawsuit," if the sitting President of the United States does not appear by December 11, 2026, even though he has committed to a defined deposition window of January 11 through January 22, 2027, and even though the only obstacle to that window is a scheduling deadline that the Magistrate Judge acknowledged she has no authority to move.

And finally, he's mad that the magistrate judge agrees with the BBC that Trump's early document production in discovery was inadequate. His reasoning is basically nuh uh."

Anyway, it appears that we have yet another MAGA culture warrior on the bench in Florida, one willing to twist both appeals court and Supreme Court precedent into a pretzel so his favoritest President ever can go after the media. And all over a documentary that never aired in the US, caused basically no stir when it did air, and only became a grievance months later when MAGA influencers decided to make it one.

As Corn-Revere said when the lawsuit was filed, this is nothing more than the president's latest effort to intimidate media companies that he sees as adversarial to his administration." But now he's got a guy on the bench handling the case who has already shown a willingness to twist the law for Trump. And thus, the media intimidation continues.