Not so fast.
Numerous lawyers and legal analysts have been quick to disparage as weak the Trump campaign’s libel lawsuit against the New York Times. They predict it will fail early in the legal process through either a motion to dismiss or on summary judgment.
I disagree. While defamation cases are exceedingly difficult to prove whenever they involve a public figure, this lawsuit is legitimate and viable. It deserves a trial on the merits if it can get that far.
The lawsuit alleges that the Times published a March 2019 op-ed by former executive editor Max Frankel that was knowingly false and defamatory. In the column, the writer asserts that the campaign had an “overarching deal” with Vladimir Putin’s oligarchy” to “help in the campaign against Hillary Clinton” in exchange for “a new pro-Russia foreign policy.”
The Trump campaign is entitled to its day in court, despite the speculation by some lawyers that it’s headed to the shredder.
The plaintiff contends that no such deal ever existed and the defendant knew this because the newspaper had previously reported that such statements were untrue. It published the column anyway, causing damage to the campaign’s reputation that is actionable as libel (the written form of defamation).
Predictably, the Times responded to the lawsuit by claiming that the op-ed was expressing only an opinion which is protected speech. This would be a correct analysis under the law, but only insofar as the column was indeed conveying opinionated thought. If it was not, then the newspaper is not protected and can be held responsible in a court of law for any damages sustained.
Logically then, let’s examine what constitutes opinion. Merely identifying a publication as “opinion” does not mean that it is. A writing cannot hide behind the guise of what it is plainly not. The content, not the label, dictates whether it is an opinion or something else.
Here is the legal test: if a column avers a statement of verifiable fact, it is not an opinion at all and the newspaper is not insulated from legal liability. This invites the question: what is a verifiable fact? It is a statement that is capable of being proven true or false.
A common example in defamation law is illustrative. If a food critic writes in a restaurant review that the soup was tasteless, he is offering an obvious opinion. He didn’t like the soup, although others might disagree. It is a matter of subjective judgment that can neither be right nor wrong.
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However, if the critic writes that the soup was cold instead of hot, this is a verifiable statement of fact that can be either proved or disproved. It just so happens that the waiter secretly snapped a photograph of the table showing steam rising from the cup of soup as the critic blew on his spoon.
Therefore, the critic’s culinary review contained a knowingly false statement of fact that damaged the good name and reputation of the restaurant, which is the definition of defamation. The owners of the restaurant would have a viable case for libel.
Applying this standard to the Trump lawsuit, the column at issue closely resembles a statement of verifiable fact that was knowingly untrue. This is corroborated by several earlier stories printed by Times that confirmed the falsity of Frankel’s column.
In the months before the op-ed was published, reporters for the newspaper wrote at least four articles explaining that there was no evidence of a “deal” or “quid pro quo” between the Trump campaign and Russia. In essence, the Times confirmed in advance what special counsel Robert Mueller would eventually conclude in his April 2019 report.
This brings us to the high burden of proof in defamation cases imposed by the U.S. Supreme Court on plaintiffs who are considered to be public figures and/or public officials. In the seminal case, New York Times v. Sullivan, the high court established a new rule that a plaintiff must prove that the defendant had actual knowledge that the statement made was false or recklessly disregarded the truth. This is called “actual malice.”
Can the Trump campaign show that the Times had “actual malice?” The evidence is contained in its own reporting. The newspaper’s previously published articles undermined or contradicted Frankel’s statement that the plaintiff had a “deal” with the Kremlin and Putin. If the Times stands by the accuracy of its own reporters and the veracity of their stories, then it knew or should have known that Frankel’s column was false. In other words, the newspaper had “actual malice.”
In New York, where this case is filed, the defendant must convince the judge that there is no material issue of triable fact in order to get the case dismissed on summary judgment. But here, there are innumerable facts for the jury to consider. Was the column opinion or a statement of verifiable fact? Was that fact false? Did prior reporting by the Times demonstrate “actual malice?”
This case should proceed to trial. The Trump campaign is entitled to its day in court, despite the speculation by some lawyers that it’s headed to the shredder.
