Stephen L. Carter: Presidents can't sue their way out of criticism

There’s a certain irony in the fact that President Donald Trump announced his silly $15 billion defamation suit against The New York Times scant days after a federal appellate court dismissed a similar claim against Fox News. That lawsuit was filed by Nina Jankowicz, the former head of the Biden administration’s short-lived Disinformation Governance Board.

The lawsuits suffer from a common defect: They seek to turn hyperbolic criticism of a government official into grounds for civil damages. The court was right in tossing Jankowicz’s suit; Trump’s should meet a similar fate — and quickly. It should be exceptionally difficult for those who serve in government to sue their critics; for presidents, it should be hardest of all.

The Trump lawsuit is leading the news, and it’s easy to see why. He seeks $15 billion in damages for a litany of grievances against the Times, which, in his telling, has been “spreading false and defamatory content” about him, during both his terms and in between. Yet on even a quick reading of the lengthy complaint, nearly everything cited is either fair comment, opinion, or for other reasons not actionable.

To understand the problem with Trump’s suit, it might be helpful to turn first to last Friday’s opinion by the U.S. Court of Appeals for the Third Circuit, which affirmed the dismissal of Jankowicz’s claim that she’d been defamed by Fox News. The Disinformation Governance Board — could one imagine a more Orwellian name? — was an advisory committee to the Department of Homeland Security, announced with fanfare in April 2022, and then, in the wake of fierce criticism, was “paused” the following month and dismantled that August.

Jankowicz, who headed the board for all of three weeks, was targeted early and often by critics who warned that censorship of American citizens would not be far behind. In her suit, she alleged that Fox News, both while she led the board and after she left, broadcast commentary that defamed her.

The trial court dismissed Jankowicz’s action, and on appeal the Third Circuit was unsympathetic. The panel noted first that criticism of a government agency isn’t defamatory and explained that to punish a news outlet for its choice to make a particular official the face of that criticism is an “attack on core free expression rights.” In short, much of what Fox News said about Janowicz wasn’t actually about her. The rest, the court wrote, consisted mostly of predictions, speculation, or opinion — or was substantially true. All of those are traditional grounds for rejecting defamation claims. In the case of speech aimed at government officials, they should be interpreted as broadly as possible. To do less is to cast a shadow over the most fundamental right of a free people: the right to criticize those who govern.

Which brings us back to Trump’s lawsuit. The defendants are not just the Times, but also several of its reporters, along with Penguin Random House, publisher of a recent best-selling book by those reporters about Trump and his businesses, based largely on articles published in the Times.

The complaint, although heavy on words, is light on substance. It begins with 20-odd pages of pointless but quotable commentary — a familiar if unfortunate device these days as lawyers try to get headlines. The next 20-odd pages boast of Trump’s achievements throughout his career. Most of this is in service to a narrative that we might paraphrase this way: The Times so dislikes Trump that it published false statements in an effort to deny him reelection.

Clearly, the Times cannot be punished either for disliking him or for trying to defeat him. That leaves only the claim that he was defamed. Because Trump is a public figure — arguably the most public figure in the world — he must show that the alleged falsehoods were published by the Times and Penguin Random House either with knowledge that they were false, or with reckless disregard for the truth.

It’s hard to see how he can do that. Here, as in Janowicz’s complaint, almost everything Trump alleges is either opinion, prediction, or speculation. For example, when the Times and the book questioned Trump’s business acumen, the complaint responded by pointing to investments that turned a tidy profit. But the fact that the purchase of Mar-a-Lago has multiplied its value many times over doesn’t make the opinion “false.”

To see the court’s logic, imagine that I were to write, “President Trump seems to sue people just to get back at them.” That’s clearly a statement of my opinion, fully protected under the First Amendment. It would not be rendered “false” simply because he won or settled a few lawsuits.

Similarly, the complaint disputes the reporters’ assertions about how Trump became famous, who was responsible for his success, and whether he paid adequate attention to the financial details of his businesses.(1) All of these would seem clearly to be statements of speculation or opinion.

Another example: Trump alleges that the Times editorial board, in endorsing Kamala Harris, “asserted hypocritically and without evidence that President Trump would ‘defy the norms and dismantle the institutions that have made our country strong.’” That sort of allegation, too, arose in Jankowicz’s case, where the complaint argued that Fox News had predicted that she would “surveil” and “censor” Americans. The Third Circuit concluded that “the vast majority” of the statements made about the plaintiff personally were not actionable because they represented “speculation and conjecture about Jankowicz’s motives, goals, and future actions, of which the truth or falsity were not readily verifiable.” When speculation is “laced with hyperbole” — which is essentially what Trump alleges here — the case for dismissal is even stronger.

The short of it is that government has no business trying to regulate speech about itself — and that includes lawsuits by public officials who dislike what the news media says about them. I’m not saying that anybody needs to grow a thicker skin; rather, public servants must recognize that our ability to say cruel, even nasty things about them is part of what is meant by freedom.

I’m no fan of the mockery and vituperation that so often passes for public dialogue. But I’m even less of a fan of punishing those who engage in it. As the Supreme Court wrote some 84 years ago, “it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”

And, as the courts might now add, about the people who run them.

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(1) The lawsuit also charges the Times and Penguin with implying that Trump’s father Fred, in preparing to transfer his fortune to his son, jiggered the numbers. Even if this statement were defamatory (and I’m not saying it is), this does not appear to be a statement about his son Donald and therefore is not actionable.

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This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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