No one was surprised when Trump threatened to sue the WSJ over a story about a bawdy letter Trump sent to Jeffrey Epstein years ago for Epstein’s 50th birthday. It was widely assumed Trumpty would ‘go TACO’ rather than open himself up to Discovery in sworn depositions. I’ll admit to being surprised Trump actually filed a lawsuit. Conventional wisdom is he has no case and can’t win. I believe that’s likely true BUT I’m not sure it’s a lock. Not with THIS particular iteration of SCOTUS.
Why it’s widely believed Trump is pi$$ing up a rope is a well-established legal precedent that’s six decades old. The decision in New York Times Co. v Sullivan established First Amendment protections for individuals and news outlets saying/writing things public figures, even Presidents didn’t like. Justice Brennan’s 9-0 opinion established enshrined some important protections into law. In simple terms it held that while factual inaccuracies were regrettable in public debate when public figures were involved someone who felt defamed had to establish that 1) the person/outlet that made the statement(s) knew there was one or more factual inaccuracies and 2) the statement was made with actual malice. In other words, when there’s an ‘Absence of Malice’ allegations/criticisms of a public figure (Sullivan was the Police Chief in Birmingham, Alabama) a defendant can’t be held liable for libel/defamation.
It’s a tough standard to meet, but at times it has been or a defendant was pretty sure it would be. Such was the case when Fox News settled its lawsuit with Dominion Voting Systems to the tune of $787 million dollars. The big boss, Rupert Murdoch and his son Lachlan no doubt grimaced but for them the financial hit wasn’t as bad as it seems. Fox went right on being a RWNJ outlet and weathered that storm with little difficulty. This time we have Trumpty, abuser extraordinaire of the powers of the Presidency going after Murdoch’s crown jewel, the Wall Street Journal. To the tune of TEN BILLION bucks! Ole Rupert has basically yawned, and as I said most legal pundits say this is is a lost cause for Trumpty.
They may well be correct. In fact they probably are. Trump wasted no time in filing suit but once he settles down and it’s explained to him all the stuff the WSJ lawyers get to ask HIM in depositions and under oath, and the exhibits they will have handy to show him how big the pile of sh*t he’s stepped in is he’ll probably “go TACO.” No doubt he salivated (foaming at the mouth like a rabid dog is more like it) at Murdoch sitting for a deposition, but once he remembers his own experience in those rooms and that HE will have to do the same he’ll almost certainly look for an out.
I say “almost certainly” for a reason. As recently as this spring SCOTUS again upheld Sullivan by denying cert on a case. However Justice(?) Thomas has for years now been openly advocating for the Court to revisit the decision. He’s got plenty of backing as conservatives, including and especially The Federalist Society want to weaken, if not overturn Sullivan and the Absence of Malice standard. This article by CNN explores Thomas’ history of wanting to take up a case that would allow a weakening (if not scrapping) NYT v Sullivan. It’s worth the time to read. I’ve followed this for some years now so little in the article was news to me. Then came the last paragraph and my “Uh Oh” moment:
In 2021, conservative Justice Neil Gorsuch also questioned the decision in Sullivan, writing in a dissent when the court decided not to take up a defamation case that the 1964 ruling should be revisited in part because it “has come to leave far more people without redress than anyone could have predicted.”
It’s easy to say Thomas has been tilting at windmills but keep a few facts in mind. Sammy Alito will, if he thinks there’s a shot follow Thomas’ lead. If, like me you missed Gorsuch saying Sullivan needs another look you should also factor that in. Then consider it only takes FOUR votes for SCOTUS to grant Cert – agree to hear a case. Prior to the sweeping immunity ruling Roberts engineered for Trumpty I’d have said no way SCOTUS would even hear his case when it gets to that point. We live in a different world now.
Given the slings and arrows Kavanaugh so deservedly took during his confirmation he might see this as a chance for some payback. If not an outright rapist he’s sure as hell be ‘rapey’ so he feels a kindship with Trump on this one. Then there’s Roberts and these days who the hell knows what’s going on with HIM? I don’t find it hard to imagine getting four of The Federalist Society groomed Justices to vote to take up the case, and in the end five of them cobbling together a decision in Trumpty’s favor.
Roberts is the key. Once upon a time and for some years he had delusions of grandeur about reshaping the law to hard-core conservatives liking but doing do in a way that “The Roberts Court” would be viewed by historians with great favor. That is name would be one of those few taught in history classes as having presided over significant, and worthy revisions to Constitutional Law. He got out over his skis with his Citizen’s United decision and that stung him some. Worse, it really did stick in people’s (and legal scholar’s) minds. Then came Voting Rights. Roberts, being a disciple of conservative/Federalist Society dogma that both the Civil and Voting Rights Acts had to go found himself in the position of the Court taking up some crucial cases.
If Roberts stepped on a file of doggie doo-doo with Citizen’s United he dove headfirst into a giant pile of sh*t with his Shelby decision that gutted the Voting Rights Act. His smug-ass line about ‘the way to end discrimination is to stop discriminating’ won’t just haunt his legacy, it will prove a major stain and I believe he came to realize it. However, he wasn’t just beholden to The Federalist Society and their agenda, there were major aspects of it he wholeheartedly believe in and this was one of them. I also believed it eventually dawned on him he’d crossed the Rubicon where his legacy was concerned.
For a while there he had hoped of swimming back, as evidenced by Dobb’s and his attempt to fashion a rollback of abortion rights instead of an outright repeal of Roe v Wade. However he faced not four but five other Federalist Society Fascists hell bent on making The Handmaid’s tale a reality. Roberts I think knew right then and there he could no longer control his fellow conservative Justices. So he (I believed) realized the die had been cast and the legacy he’d envisioned was in ruins. And he chose to adopt a “in for a penny, in for a pound” attitude only instead of a “pound” it was 350-plus orange painted pounds of Trump!
It’s a given that Biden or any Democrat in the WH asked for the kind of immunity Trump sought SCOTUS would never have even heard the case, much less granted the sweeping immunity given to Trump. Hell, I’m not sure any other Republican would have gotten it including Nixon! Yes, Trumpty has taken some losses at SCOTUS. Roberts has to at least make a half-assed show of being a straight shooter to keep Democrats from expanding the size of the Court come 2028 if they gain control of the WH and both chambers of Congress.
BUT, the Sullivan decision or more specifically weakening it (or even overturning it) has been a conservative hobby-horse for decades. Trump has gotten away with way to effing much bullying of news outlets (and law firms) and Roberts (and others) can see that. If, as I fear is the case Roberts thinks he’s allowed SCOTUS to go past the point of no return then he’s got no choice but to quietly secure the votes to overturn NYT v Sullivan and let Trump and his lawyers know it.
Maybe I’m crazy and have gone too far down the rabbit hole. However I believe it’s foolish to dismiss the possibility of what I’ve suggested, and I fervently hope legal scholars who are part of the pundit class come to the same realization I have. AND start talking about it to put Roberts on the spot. In the meantime we can still hold out hope that Trump will have at least ONE lawyer who actually is competent and who he sort of listens to make sure to walk him though the consequences (as in Trumpty having to sit for depositions – under oath) of pushing this lawsuit.
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Denis, on this one you’ve missed the boat. He doesn’t care if he wins, he doesn’t care about the law, his term will be well over before this would ever get to the SCOTUS. He cares about the message itself and perhaps getting a settlement based on saving costs (Murdoch won’t fold) discovery will be deadly.
No one cares about this even getting to a trial court, never mind the SCOTUS.
I see where you’re coming from and agree this is something that IF it were to play out in court would take years. However in an article you wrote earlier you mentioned something that I hope you’ll think about before completely dismissing what I’ve written. That Trump might be working this for a settlement, even if for way less than what the lawsuit is asking for. THAT way he can crow about having “beaten” Murdoch and the WSJ and it would in fact be a big PR win for him. However THAT is only possible if Trumpty can force a settlement and I don’t see Murdoch (either Rupert or Lachlan) backing down. This (forcing a settlement) only works if Trumpty can convince Murdoch that even if it takes years in the end the WSJ is going to have to pay through the nose. That in turn means getting something done conservatives have wanted to do for literally decades. Most of your life and much of my own.
So yes you make a good point but I think I made a pretty good one too.
“…as conservatives, including and especially The Federalist Society want to weaken, if not overturn Sullivan and the Absence of Malice standard.”
The only thing they want to do is to be able to tell all the lies they want about anyone and get away with it.
Period.
Just imagine if Clinton or Obama threatened to sue every time the right-wing noise machine printed and/or spoke lies about them.
They would’ve been laughed at by everyone (even on the left) as not being able to take “simple” criticism. (Hell, SCOTUS even ruled that Clinton did NOT have immunity from being sued for actions taken before he became president–specifically, the Paula Jones case–but, for Drumpf, SCOTUS cobbled together not only a level of immunity for pre-presidential actions but even allowed for *some* possibly criminal action IF it was deemed within “presidential authority.”)