In Wisconsin, the swingiest of swing states, where plaintiffs losing libel suits almost never have to pay defendants' legal costs, President Donald Trump aims to do damage control on the COVID-19 front by picking a fight with the media.
On April 13, that's where Donald J. Trump for President filed a libel claim over words that had actually come out of the mouth of POTUS. The target was Northland Television, the small owner of an NBC affiliate which had broadcast an advertisement from the Super PAC Priorities USA. The gist of the commercial knocked Trump for saying, "This is their new hoax," in reference to the novel coronavirus. The Trump Campaign alleges through its suit that audio clips were pieced together in a misleading fashion, and that when Trump mentioned "hoax" during a South Carolina rally, he was referring to how his political opponents were characterizing his response to the coronavirus.
"The expression under attack here, a paid political advertisement broadcast by a number of television stations around the country just months before a presidential election, lies at the core of our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," states a new dismissal motion from Northland Television. "The First Amendment does not tolerate such speech-chilling litigation, and the Court should swiftly dismiss it."
On Wednesday, the Wisconsin broadcaster gave four big reasons why the suit fails and deserves dismissal. (Read the full brief here.)
The first argument from the defendant is that the Priorities USA ad is not "of and concerning" the plaintiff, that being Donald J. Trump for President. Instead, the defendant says the advertisement concerns President Trump himself.
Why isn't Trump, instead of his political apparatus, the one suing? Does it have anything whatsoever to do with the fact that he is presently a defendant in a separate libel case and that he's now before an appeals court with the argument that he's immune from civil action in state court while serving since the demands of being president are so great?
Regardless of that answer, Northland says that defamation is a personal tort, that statements referring to individual members of an organization don't implicate the organization and that Trump can't plead around the "of and concerning" standard by remarking that the president is “the Trump Campaign’s candidate.”
Argument No. 2 is that the advertisement isn't actionable because it reflects opinion incapable of being proved true or false.
"Here, the political advertisement as a whole reflects not a verifiable fact, but Priorities USA’s opinion that the President dangerously downplayed the risk from coronavirus in the early part of 2020," states the dismissal papers. "The validity of that opinion is not for a court to decide. Instead, whether President Trump fully understood and responded appropriately to this danger to public health is for voters to decide in the 2020 presidential election."
If the judge sees it differently, however, Northland argues that the advertisement is then substantially true. Or, at least, not materially false.
"President Trump made the statement 'this is their new hoax' at a South Carolina political rally in which he also used the words 'the impeachment hoax' to characterize the House impeachment and Senate proceedings in December 2019 and January 2020 as an unfounded political controversy," continues the court papers. "He compared that to the coronavirus — 'their new hoax' — which, he told the rally, '[n]ow the Democrats are politicizing.' He responded to their criticism by boasting to the rally: 'We did one of the great jobs.' And he continued to minimize the threat while boasting about the Administration’s response by saying: 'We have 15 people in this massive country and because of the fact that we went early, we went early, we could have had a lot more than that. We’re doing great.'”
The fourth and final argument for tossing the lawsuit is that the Trump Campaign hasn't plausibly alleged actual malice. Keep in mind that no employee or officer of this NBC affiliate actually made any statements about Trump. Instead, it carried an advertisement, and while it theoretically holds liability for doing that, the plaintiff must show that it entertained doubts about the advertisement's veracity or recklessly disregarded the truth.
The Trump Campaign may make a fuss over a fuss over a March 25 cease and desist letter sent to the NBC affiliate over the PUSA advertisement.
In the meantime, the defendant argues, "Here, the political advertisement reflected a rational interpretation by Priorities USA of President Trump’s comments about the coronavirus at the rally. ... Even over this past weekend, President Trump continued to use 'hoax' in his political rhetoric, condemning former President George W. Bush’s call for national unity."
