The Trump campaign filed a libel suit on Wednesday against the New York Times over a 2019 opinion piece, but First Amendment scholars who spoke with TheWrap don’t believe the campaign has much of a shot at convincing a Manhattan court that the paper knowingly and recklessly published false statements as fact.
“I doubt that a court would view this as involving false statements of fact, as opposed to constitutionally protected conjecture and interpretation — and I especially doubt that a court would find that the New York Times knew that whatever factual assertions were included were false or likely false,” Eugene Volokh, a leading First Amendment scholar and professor at UCLA’s School of Law, said in an email.
At the heart of the Trump campaign’s suit is a 2019 op-ed by Max Frankel, the former executive editor of the Times, which argued that the Trump campaign had an “overarching deal” with the Russian government to “beat Hillary Clinton for a new pro-Russia foreign policy.”
In its suit, the campaign claimed that the paper published the piece ahead of Special Counsel Robert Mueller’s report because it knew that the report would “likely exonerate” Trump’s campaign (it did not) and that it published “as fact” that there was a “conspiracy with Russia” in order to “damage the Campaign.”
When asked about the suit at a Wednesday press conference, Trump said that the Times’ piece was “beyond an opinion.” “That’s not an opinion. That’s something much more than an opinion,” Trump said. “They did a bad thing and there’ll be more coming.”
But a spokesperson for the Times said in a statement, “The Trump Campaign has turned to the courts to try to punish an opinion writer for having an opinion they find unacceptable. Fortunately, the law protects the right of Americans to express their judgments and conclusions, especially about events of public importance. We look forward to vindicating that right in this case.”
What’s particularly unusual about Trump’s suit, according to some scholars, is that the plaintiff is Trump’s reelection campaign — Donald J. Trump for President, Inc. — and not Trump himself.
“If there’s a mistake that’s been made [in how the Trump campaign filed the suit], it’s that there’s an allegation here that the plaintiff is the corporation,” Michael Overing, a digital media lawyer and adjunct professor at USC’s Annenberg School for Communications, said. “If you believe that the Russian inquiry was all just politically motivated and was never supported, you would say that Donald Trump’s reputation has been sullied. You certainly would not say that Donald Trump the Corporation was sullied.”
Though Overing said he believed the court would eventually rule in the paper’s favor in a summary judgment, he didn’t think the Times would be able to get the suit tossed out right away through a motion to dismiss.
“There’s enough in the complaint to get past the procedural question as to whether or not this is truly a statement of opinion,” Overing said. But Overing said that the Times will be able to make a solid argument for why the piece holds statements of opinion and why those statements are protected by the First Amendment.
“It’s one of the functions of the press is to be allowed the latitude to say things without risking a libel lawsuit because we need room for opinion and the interchange and exchange of ideas,” Overing said, “so I think that the New York Times ultimately is going to win this lawsuit.”
But for a sitting president — and, by proxy, his campaign — to be filing a lawsuit against a media organization is unusual, Overing said.
“We have always expected our president to have thicker skin. We have always expected that the president will be able to withstand a lot of criticism because of the fact that the president is standing in front of the camera all the time on the world stage. And so we don’t expect the president to go out and file a lawsuit over every slight and every criticism that’s leveled against them,” Overing said. “We just don’t expect that. So to have a president do this is unique.”