Normally, I’d advise skepticism in defamation actions launched by politicians against media outlets. However, Donald Trump has succeeded beyond all expectations with this strategy — and the New York Times might be his most valuable target yet.
Late Monday, Trump and his legal team filed a defamation action against the Gray Lady in a Florida federal court, aiming for a $15 billion payout over its coverage of the 2024 election. He announced the lawsuit at that time on Truth Social, calling the NYT the ‘virtual “mouthpiece” for the Radical Left Democrat Party,” and their coverage as ‘the single largest illegal Campaign contribution, EVER.’
Axios hits the high points:
Driving the news: The suit, filed in U.S. District Court for the Middle District of Florida, points to three articles and “a malicious, defamatory, and disparaging book.” It also points to the editorial board’s endorsement of former Vice President Kamala Harris in the 2024 election.
- The suit alleges the book and articles were crafted “with actual malice, calculated to inflict maximum damage upon President Trump, and all published during the height of a Presidential Election.”
- Trump’s lawsuits claims the Times was striving to damage his business reputation, sabotage his candidacy, and prejudice judges and juries in the legal cases against him in the lead-up to the 2024 election.
- After he won the election, the suit alleges, the Times still sought to “subject him to humiliation and ridicule.”
The suit is lengthy and filled with no small amount of laudatory praise for Trump from his attorneys, an argument for the kind of damage that alleged defamation might do. Roughly speaking, the complaint involves one editorial endorsing Harris and three other articles. One was an interview of former chief of staff John Kelly, in which Kelly said that he thought Trump was a “fascist.” Another credited the producers of The Apprentice for creating Trump’s public image as a titan of industry, a laughable premise by anyone who lived through the 1980s and 1990s. The third covered Trump’s “lifetime of scandals,” and argued that “[N]o major party presidential candidate, much less president, in American history has been accused of wrongdoing so many times.” Plus, the lawsuit also cites two books as defamatory, both written in part by NYT journalists, but one of which was published elsewhere (Penguin RandomHouse).
Again, in normal circumstances, this would not have much chance for success in court as a defamation action. Even putting aside Trump’s status as a “public person” under Sullivan — for just a moment — the editorial and analyses would likely all fall under the umbrella of opinion. Newspapers are liable for defamatory false statements even in opinion pieces, but endorsing Harris as the only “patriotic” choice is clearly opinion. So is the publication of Kelly’s opinion in a news article, as are the claims that The Apprentice honed Trump’s public persona. As for a “lifetime of scandals,” that’s also in YMMV territory, depending of course on the veracity of the “scandal” claims.
But let’s get back to Sullivan, which seems to be the target in paragraph 18 of the lawsuit:
Contrary to the Times’ and its reporters’ apparent impression, the First Amendment has never furnished the Times—or Penguin, or anyone else—with an unqualified privilege to make false, malicious, and defamatory statements about its opponents in order to try and ruin their lives and livelihoods. President Trump brings this suit to highlight that principle and to clearly state to all Americans exhausted by, and furious at, the decades of journalistic corruption, that the era of unchecked, deliberate defamation by the Times and other legacy media outlets is over.
This is, I believe, the real fulcrum of Trump’s legal successes in his suits against media companies. They know that the Sullivan precedent that protects them from an avalanche of defamation claims currently skates on thin ice at the Supreme Court. Clarence Thomas has written multiple times about its aberrant nature in American constitutiuonal jurisprudence, and the current roster at the high court might have enough converts. Reversing Sullivan would be a disaster for these media outlets, not just with Trump but with practically everyone they name in their reports.
ABC and CBS/Paramount certainly had to consider that in their decisions to spend a few million dollars to save billions. Trump is now applying the same leverage to the New York Times, and given the corrupt nature of their own reporting, it’s a threat they have to take seriously. They may well decide to eat a little crow now to prevent their case coming to the Supreme Court, a case which could result in removing a key defense in later lawsuits even if they win this particular suit on review.
Trump’s playing hardball, and thus far, the Protection Racket Media is still playing whiffleball. Let’s see if the Gray Lady retreats.
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