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| David Oxenford |
This includes the suit filed by the campaign against Northland Television LLC, the licensee of a rural Wisconsin television station. That station was perhaps the smallest TV station to air an ad by a noncandidate group, Priorities USA, that the Trump campaign alleged was misleadingly edited to assert that the president had labeled the coronavirus a "hoax."
The campaign claimed that the reference to the hoax was not about the virus itself, but was actually a reference to "the Democrats' exploitation of a pandemic and related characterization of the candidate's response to the pandemic." This suit was vigorously opposed by the station and the sponsor of the ad. The parties have now agreed to voluntarily dismiss that suit with prejudice, meaning that it cannot be refiled.
Another suit was brought by the campaign against Cable News Network Inc., alleging that CNN had libeled Trump by publishing on its website an article from one of its contributors alleging that the campaign had assessed the risks of seeking Russian assistance in the 2020 campaign, and had "decided to leave that option on the table."
The campaign alleged that the statement was false and defamatory — and published with knowledge that it was false. CNN had countered that the statement was protected as it was presented as opinion, not fact, and moreover it was published without actual malice. Under U.S. Supreme Court precedent, a claim about a public figure for defamation can only be sustained if it is both false and published with actual malice — meaning that the publisher knew that it was false, or acted with reckless disregard as to whether or not it was false and published it anyway.
In considering a motion to dismiss the claim against CNN, the U.S. District Court for the Northern District of Georgia reviewed both whether the disputed claim from the article was opinion — and therefore not subject to being found to be libelous — and the question of actual malice. The court first looked at whether the statement was framed as an opinion. Statements framed as an opinion of the writer, as opposed to a factual assertion, are generally not libelous.
The court found that the article could be read as making a factual statement that Trump's campaign was still considering seeking Russian assistance in the 2020 election. Moreover, as the statement had not clearly been described as an opinion of the writer, but instead framed more as if it were a statement of fact, the court concluded that there were no grounds for dismissal based on the claim that the disputed statement was merely the opinion of the writer.
However, the court decided to dismiss the suit after concluding that there was no showing in the complaint of actual malice. The court looked at the allegations made in the lawsuit that CNN and the writer must have known that the statement was false, given the Trump campaign's unsupported assertion that there was "extensive public information" available at the time of publication to show that it was false.
The court found that there was nothing in the record supporting these conclusory statements as to what public information was available and whether the author had investigated that information. Mere allegations that the author must have known the statement was false were insufficient to warrant a finding of malice, according to the court.
In addition, the court concluded that the mere fact that the author had, in the past, been a critic of the president did not show that there was actual malice in this case. Nor did the general allegations that CNN itself was biased against Trump constitute any showing of the actual malice needed to sustain the claim.
Without a showing that the claims were made with actual malice, the case was dismissed. But the process that the court undertook to review the claims is instructive for broadcasters in dealing with claims made in political issue advertising.
The decision drives home some important lessons about how broadcasters need to deal with attack ads from noncandidate groups — and the cease-and-desist letters that may follow from the lawyers for the person being attacked. As a general matter, where a broadcaster has no knowledge of the truth or falsity of an ad when it begins to air that ad, the airing itself may not constitute actual malice.
But when the cease-and-desist letter arrives at the station pointing out the alleged falsity of statements made in the ad, then the risk generally increases that continued airing of the ad can more easily be alleged as having been done with actual malice. The cease-and-desist letter can be seen as putting the broadcaster on notice that the ad's claims may be false, so that continued airing without further inquiry by the broadcaster could be seen as being done with malice.
Thus, broadcasters must react quickly when such letters arrive, and analyze the claims made. This is a delicate analysis that broadcasters and other media companies must make throughout any political season, so counsel must evaluate such ads and quickly parse the claims as they come in.
David Oxenford is a partner at Wilkinson Barker Knauer LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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