By Mike Masnick
Back in March you may remember that we wrote about yet another ridiculous SLAPP suit filed by the Donald Trump campaign (using lawyer Charles Harder, who, you may also remember, was the lawyer in the lawsuit against us as well). Harder’s track record in these performative cases continues to be… rather lacking. Last week, you may have missed that amidst all the other legal disputes Trump’s campaign was losing, this particular case was also dismissed — though, not quite as easily as I had expected. And it does leave it open for an amended complaint to be filed, though I still can’t see how it passes muster.
If you don’t recall, this particular lawsuit was about an opinion piece on CNN by Larry Noble, a former general counsel for the Federal Election Commission, who laid out a detailed analysis of the Mueller report about Russian interference in the 2016 election, and how it likely violated Federal Elections laws. The article expressed Noble’s opinions, based on clearly disclosed facts. And that, by definition, should not be defamatory. District court judge Michael L. Brown — who was appointed to the bench by Trump — rejects the complaint, but not because it was opinion and therefore not defamatory.
The case focuses on a single statement in Noble’s CNN article:
campaign assessed the potential risks and benefits of again seeking
Russia’s help in 2020 and has decided to leave that option on the table”
While many other statements in the article include language making it clear that these are Noble’s opinion, that one sentence doesn’t have that specific language, and that opens it up to being seen as a statement of fact, provable true or false.
A reasonable reader could readily
understand the first part as alleging a weighing of the risks and benefits.
It has a precise meaning. Defendants argue the second part is “couched
in figurative, imprecise language, and thus is not actionable under New
York [l]aw.” (Id. at 16.) The Court disagrees. While “[s]tatements
‘couched in loose, figurative or hyperbolic language in charged
circumstances’ are more likely to be deemed opinions,” it is not an
inflexible rule, and “the court should weigh the totality of the
circumstances.”…. Thus, while “left
on the table” is figurative language, it is also precise language. A
reasonable reader could readily understand it to mean “available for
consideration.” The Statement satisfies the first factor of the test.
However, what kills the lawsuit is the failure of Harder and the Trump Campaign to make much of an effort at all to get over the NYT v. Sullivan standard of defamation of a public figure. In order to meet that standard, they need to show that CNN/Noble knew that what was written was false, or had “reckless disregard” for the truth (which doesn’t just mean they were sloppy — it has to mean some actual action to avoid the truth). It seems that Harder barely even bothered to try to get over this “actual malice” bar, and the judge is not impressed:
Most of the allegations in the complaint regarding actual malice are
conclusory. Plaintiff, for example, alleges in a purely conclusory manner
that Defendants “clearly had a malicious motive” and “knowingly
disregarded all . . . information when it published the Defamatory
Article.”… The complaint’s allegation that Defendants were
“aware at the time of publication” that the Statement was false due to
“[e]xtensive public information” is also conclusory and without factual
support…. Allegations such as these amount to little more than
“[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements,” which are insufficient to support a cause of
Plaintiff’s only other allegation of actual malice is that Mr. Noble
had “a record of malice and bias against the President” as evidenced by a tweet and previous articles he had written….
In the tweet,
Mr. Noble wrote: “Trump cheats and lies, and when caught, lies again
and claims the right to make the rules. He claims defeats as victories,
takes credit for anyone’s success and blames his failures on others . . . .”
(Id.) The Supreme Court has emphasized “that the actual malice
standard is not satisfied merely through a showing of ill will or ‘malice’
in the ordinary sense of the term.”… The tweet might show Mr.
Noble’s ill will towards the President, but it fails to plead actual malice
in the constitutional sense—that is, it does not show Mr. Noble made the
Statement with knowledge that it was false or with reckless disregard of
whether it was false.
And thus the case is dismissed, though they can try to amend the complaint to plead actual malice. That seems quite unlikely to get anywhere.
In the meantime, this should be another reminder of why we need better state anti-SLAPP laws (that can apply in federal court) and a full federal anti-SLAPP law.