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Law360 (May 28, 2020, 4:58 PM EDT ) President Donald Trump's reelection campaign hit back Thursday against an NBC affiliate's efforts to have a defamation suit against it tossed, stating that the First Amendment does not protect known falsehoods like the "synthetically altered" audio clip featured in an advertisement aired by the channel.
In a brief filed in Wisconsin federal court, the 2020 Trump campaign said the ad WJFW-NBC aired had a known mischaracterization of remarks President Trump made about the coronavirus pandemic. Rather than pulling the ad after the campaign notified the affiliate about the falsehood, it allegedly aired the ad 36 more times.
"To dismiss this action at this juncture would be to endorse false manipulation of the news and intentional deception of the public. Defendant invokes the First Amendment repeatedly throughout its brief, seeking safe haven there for the admittedly falsified statement," the brief read. "In fact, defendants will find no solace or protection in the First Amendment. The First Amendment does not protect known lies[.]"
The campaign claims the ad featured a "false, manufactured" audio clip of President Trump saying, "The coronavirus, this is their new hoax." According to the brief, the ad aired after a number of public reports — from The Washington Post and others — rejected that the president actually expressed the clip's sentiment and after a cease-and-desist letter was sent to the affiliate.
The brief said the fact that the affiliate continued to air the ad, despite the reports and the letter, showed it published the false clip "with knowledge of or reckless disregard for the truth[.]"
The campaign also slammed the affiliate's assertion that its lawsuit is trying to chill free speech and denied the action involved criticism of the president that would be protected by the First Amendment. It countered the affiliate's claims that the ad was expressing an opinion, stating the campaign only took issue with the false statement rather than the entire ad.
In addition, the brief claimed the president and his reelection effort were "inextricably intertwined," rebuffing arguments that the ad was about President Trump himself and not the Trump campaign.
Charles D. Tobin of Ballard Spahr LLP, who is representing the NBC affiliate, wrote in a Thursday email that the campaign's arguments "admit that this case is all about the First Amendment rights of broadcasters to communicate opinions about the president's policies."
"In the middle of the greatest public health crisis, and in the run-up to the election, nothing is more fundamental than freedom for this type of speech," he wrote.
Counsel for the Trump campaign did not immediately respond to requests for comment Thursday.
The Trump campaign is represented by Eric M. McLeod, Lane E. Ruhland and Lisa M. Lawless of Husch Blackwell LLP.
The affiliate is represented by Charles D. Tobin, Al-Amyn Sumar and Ashley I. Kissinger of Ballard Spahr LLP, and Brady C. Williamson and Mike B. Wittenwyler of Godfrey & Khan SC.
The suit is Donald J. Trump for President Inc. v. Northland Television LLC, case number 3:20-cv-00385, in the U.S. District Court for the Western District of Wisconsin.
--Additional reporting by Nadia Dreid and Dave Simpson. Editing by Jack Karp.
For a reprint of this article, please contact reprints@law360.com.
