Recently, CNN filed its response to former President Donald Trump’s defamation lawsuit. It is not surprising that CNN’s attorneys seem to have the stronger legal argument. After all, the controlling precedents make it notoriously difficult for a public figure to prevail in a defamation action. It is surprising, however, and more than a little revealing, that CNN’s filing nevertheless tends to support the political complaint that animates Trump’s suit: namely, that CNN, contrary to its branding, is not exactly a beacon of journalistic objectivity and honesty.
Before coming to his specific defamation claims, Trump’s own submission sets the stage by claiming that CNN has a history of smearing him in order to advance its own anti-Trump political agenda. Thus, for example, Trump alleges that CNN broadcast an interview with a psychiatrist, Allen Frances, who stated — outlandishly — that “Trump is as destructive a person in this century as Hitler, Stalin, and Mao were in the last century. He may be responsible for many more million deaths than they were.” On another occasion, Trump claims, CNN’s Anderson Cooper interviewed Linda Ronstadt — yes, that Linda Ronstadt, the pop singer — about her views on Trump’s similarities to Hitler. Finally, Trump asserts that a CNN producer — filmed undercover by Project Veritas — admitted that the network’s coverage of Trump’s presidency was a kind of “propaganda” designed to get him “out” of office.
CNN does not even deny Trump’s general complaint that its negative coverage of him is motivated by political animus.
Given how damaging these claims would be to the reputation of a serious news network, you might expect CNN to launch a defamation suit of its own against Trump. CNN has not done so, however. Indeed, it cannot dispute these claims, for the simple reason that they are all absolutely true and easily verifiable. In fact, Trump’s suit reminds us that these ridiculous and humiliating examples are accurate descriptions of the network that bills itself as “the most trusted name in news.”
Indeed, CNN does not even deny Trump’s general complaint that its negative coverage of him is motivated by political animus. It merely notes that, under the prevailing legal standards, evidence of political animus is not sufficient to establish the “actual malice” necessary for a public figure to win a defamation case. “Actual malice” is a legal term of art. It means that the person or entity being accused of defamation made defamatory claims knowing that they were false, or with reckless disregard for whether they were true. CNN’s lawyers are no doubt correct that political animus does not establish actual malice. But it would also be nice if “the most trusted name in news” could credibly deny that its reporting is motivated and shaped by political animus. Alas, it cannot do so.
Trump’s specific defamation claims center on CNN’s repeated use of the term “Big Lie” to characterize Trump’s complaints about the 2020 election. According to Trump, this term is deliberately deployed by CNN to link him to the propaganda techniques of the Nazi Party and thus to discredit him in the eyes of CNN viewers. Trump cites several instances of this characterization, including the assertion by a news anchor (not an opinion commentator) that Trump went to Arizona in 2020 to “disenfranchise the state’s voters based on all of his deranged election lies.”
Here again, CNN’s response is legally sound but politically damaging. Its filing correctly observes that defamation must be based on a statement of fact that is verifiably false. But CNN says that its endless claims that Trump is propagating a “Big Lie” are not intended to be factual assertions. What are they, then? According to CNN, they fit into a variety of categories that American courts have held are privileged expression that cannot be subject to a defamation action. They are “pure opinion,” “rhetorical hyperbole,” “exaggeration,” and “political invective” that are “used for dramatic effect.” All perfectly legal, but not what you would expect from a “news” organization that aims to inform its viewers and facilitate sober public deliberation.
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Along the way, CNN notes that courts have treated as protected speech terms that are even more loaded and derogatory than the “Big Lie” — terms such as “fascist,” “Neo-Nazi,” and “racist.” CNN even quotes from one ruling that held that “the term ‘racist’ is hurled about so indiscriminately that it is no more than a verbal slap in the face.” Anyone who follows the news knows that CNN — like so many outlets of the “mainstream media” — is more than willing to use the term “racist” to describe people it views as politically undesirable. On the air, such accusations are always presented seriously, as if they capture some important and alarming reality. But in court, CNN admits that when it calls people “racist,” it may not be saying anything factual about them at all. It may just be heaping abuse on them for political reasons.
CNN’s legal filing is an able defense by its lawyers against the claim that the network defamed Donald Trump in a legally actionable way. But that filing is at the same time a tacit plea of guilty to Trump’s political complaint: that CNN is as much a propaganda operation as it is a news organization. All citizens should be aware of this and take CNN’s news coverage with the appropriate grain — or ton — of salt.
Carson Holloway is Washington Fellow in the Claremont Institute’s Center for the American Way of Life.