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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

In the last few days, two defamation cases filed against media companies by the Trump campaign have been dismissed – one on the merits and one by agreement of the parties.  This includes the suit filed by the campaign against Northland Television, the licensee of a rural Wisconsin television station.  That station was perhaps the smallest TV station to air an ad by a non-candidate group, Priorities USA, that the Trump campaign alleged was misleadingly edited to assert that the President had labeled the coronavirus a “hoax.”  As we wrote here when that suit was first filed, the campaign claimed that the reference to the hoax was not about the virus itself but was actually a reference to “the Democrats’ exploitation of a pandemic and related characterization of the candidate’s response to the pandemic.”  This suit was vigorously opposed by the station and the sponsor of the ad.  The parties have now agreed to voluntarily dismiss that suit with prejudice, meaning that it cannot be refiled.

Another suit was brought by the campaign against CNN alleging that CNN had libeled the President by publishing on its website an article from one of its contributors who alleged that the campaign had assessed the risks of seeking Russian assistance in the 2020 campaign and had “decided to leave that option on the table.”  The campaign alleged that the statement was false and defamatory – and published with knowledge that it was false.  CNN had countered that the statement was protected as it was presented as opinion, not fact, and moreover it was published without “actual malice.”  As we have written before (see, for instance, our articles here and here), under Supreme Court precedent, a claim about a public figure for defamation can only be sustained if it is both false and published with “actual malice” – meaning that the publisher knew that it was false, or acted with reckless disregard as to whether or not it was false and published it anyway.

In considering a motion to dismiss the claim against CNN, the court reviewed both whether the disputed claim from the article was opinion and therefore not subject to being found to be libelous, and the question of actual malice.  The Court first looked at whether the statement was framed as an opinion.  Statements framed as an opinion of the writer, as opposed to a factual assertion, are generally not libelous (see, for instance, our article here).  The court found that the article could be read as making a factual statement that the President’s campaign was still considering seeking Russian assistance in the 2020 election. Moreover, as the statement had not clearly been described as an opinion of the writer, but instead framed more as if it were a statement of fact, the court concluded that there were no grounds for dismissal based on the claim that the disputed statement was merely the opinion of the writer.

However, the court decided to dismiss the suit after concluding that there was no showing in the complaint of actual malice.  The court looked at the allegations made in the lawsuit that CNN and the writer must have known that the statement was false, given the Trump campaign’s unsupported assertion that there was “extensive public information” available at the time of publication to show that it was false.  The court found that there was nothing in the record supporting these conclusory statements as to what public information was available and whether the author had investigated that information.  Mere allegations that the author must have known the statement was false were insufficient to warrant a finding of malice, according to the court.  In addition, the court concluded that the mere fact that the author had, in the past, been a critic of the President did not show that there was actual malice in this case.  Nor did the general allegations that CNN itself was biased against the President constitute any showing of the actual malice needed to sustain the claim.

Without a showing that the claims were made with actual malice as defined by the courts, the case was dismissed.  But the process that the court undertook to review the claims is instructive for broadcasters in dealing with claims made in political issue advertising.  The decision reinforces some of the suggestions that we have made in the past as to how broadcasters need to deal with attack ads from non-candidate groups – and the cease and desist letters that may follow from the lawyers for the person being attacked.  See our articles here and here on this subject.  As a general matter, where a broadcaster has no knowledge of the truth or falsity of an ad when it begins to air that ad, the airing itself may not constitute actual malice.  But when the cease and desist letter arrives at the station pointing out the alleged falsity of statements made in the ad, then the risk generally increases that continued airing of the ad can more easily be alleged as having been done with actual malice.  The cease and desist letter can be seen as putting the broadcaster on notice that the ad’s claims may be false, so that continued airing without further inquiry by the broadcaster could be seen as being done with malice.  Thus, broadcasters must react quickly when such letters arrive and analyze the claims made.  This is a delicate analysis that broadcasters and other media companies must make throughout any political season, so be sure to have your lawyers on call to help you to evaluate such ads and quickly parse the claims as they come in.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership. 

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