Trump Campaign Actually Sues TV Station Over Anti-Trump Ad

from the bringing-free-speech-back dept

A few weeks back, we noted that the Trump Campaign was sending threatening letters about a TV ad by the PAC Priorities USA that criticized Trump's handling of the pandemic. You can see it here:

As we noted, the threat letters only caused a lot more people to watch the ad, and it seemed notable that they only focused on one single line in the ad, and not the rest of it. Now the campaign has, incredibly, made good on the threats and filed suit against at least one TV station, WJFW-NBC in Wisconsin.

The lawsuit is for "common law defamation" and is -- like so many Trump or Trump Campaign lawsuits -- not about any real legal issue, but mostly about three things: (1) creating chilling effects for others, (2) performing for the Trump base, and (3) fundraising for the campaign. There is no chance this lawsuit gets anywhere. Political advertising is among the most protected under the 1st Amendment, and, in fact, Congress has rules telling broadcasters that they cannot reject political ads from campaigns even if they're false. Of course, this ad is from a PAC, not the campaign directly, so that rule does not apply directly, but the general 1st Amendment principles still very much apply.

On top of that, there is no way in hell that the clips, as cut, meet the high bar for defamation of a public figure. The argument made by the campaign is that the clip takes one thing that Trump said -- "this is their new hoax" -- and takes it out of context. The context being that Trump was referring to the Democrats' "politicization" of COVID-19, and the ad implies he's saying that the disease itself is a hoax. The problem is that the difference here is not even remotely close to what it takes to be defamatory, even if it's misleading. For one thing, Trump was playing down the threat and risk of COVID-19 in criticizing Democrats, who were warning that it was going to be a big deal. And that proved entirely accurate. The context here does little to actually make Trump look any better, and in no way rises to the level of it being defamatory.

On top of that, as I've pointed out repeatedly, the Trump campaign itself has regularly (for years!) posted much more misleadingly cut videos of his critics, including Joe Biden. So, even if the Priorities USA ad was defamatory, it would open up the Trump campaign to similar claims many times over. But it's not defamatory.

It's notable, of course, that Wisconsin, where this lawsuit was filed, has no anti-SLAPP law at all. And while the case is still likely to get thrown out at an early stage, the lack of an anti-SLAPP law means that (1) they're much less likely to get back attorney's fees, and (2) it's still going to involve much more expensive legal work than if they could use an anti-SLAPP law.

Still, even though the case will get thrown out, Trump will "succeed." Already I'm seeing clueless fans of Trump's (the same ones who insist they're all for the 1st Amendment) cheering on this example of Trump "hitting back against the fake news media" and it will almost certainly create chilling effects at other news stations that don't want to take on the time and expense necessary to defend even this kind of bogus lawsuit. And that's a huge shame, because a key aspect of the 1st Amendment is to protect political discourse -- even when that discourse is misleading.

At the very least, this case should be a strong reminder that (1) Wisconsin needs an anti-SLAPP law and (2) so does the federal government.

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Filed Under: 1st amendment, anti-slapp, chilling effects, defamation, donald trump, edits, free speech, political advertising, slapp, trump campaign, wisconsin

Companies: wjfw