Trump v. Cable News Network, Inc.

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-61842-CIV-SINGHAL

DONALD J. TRUMP,

Plaintiff,

v.

CABLE NEWS NETWORK, INC.,

Defendant.

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ORDER

THIS CAUSE is before the Court on Defendant Cable News Network, Inc.’s

(“CNN”) Motion to Dismiss (DE [20]). The motion is fully briefed and ripe for review. For

the reasons discussed below, the Motion to Dismiss is granted.

I. INTRODUCTION

Plaintiff, Donald J. Trump (“Trump”) is a former president of the United States of

America and a citizen of Florida. (DE [1] ¶ 1, 5). Defendant CNN is a news media

corporation organized and incorporated under the laws of Delaware with its principal

place of business in Georgia. (DE [30]). Trump has sued CNN for defamation,1 alleging

diversity of citizenship. (DE [1] ¶ 4). 28 U.S.C. § 1332.

Trump alleges that CNN defamed him by making statements comparing him to

Hitler and the Nazi regime. Trump’s Complaint (DE [1]) specifies five instances of alleged

defamation. Id. ¶ 28.a-e:

a. On January 25, 2021, CNN published an article written by Ruth

Ben-Ghiat, a “frequent contributor to CNN Opinion,” entitled

1 In Florida, before suing a media outlet for defamation, a plaintiff must “serve notice in writing on the

defendant, specifying the article or broadcast and the statements therein which he or she alleges to be

false and defamatory.” Fla. Stat. § 770.01. Trump provided a Notice Letter to CNN. (DE [1] ¶10; DE [8]).

Accordingly, the conditions precedent for filing this action have been satisfied.

little lies.” Ben-Ghiat wrote: “This is Trump’s ‘Big Lie,’ a brazen

falsehood with momentous consequences.” Id. Ben-Ghiat likened

the Plaintiff to an authoritarian dictator, writing:

Trump, a leader of authoritarian intentions and

tendencies, had disadvantages with respect to the

foreign autocrats he so admires. He had no state

media, like China's Xi Jinping. He could not rule by

decree, like Hungary's Viktor Orbán. He had to govern

and run for reelection in an open society with a

relatively robust free press. Moreover, although he

succeeded in making journalists into hate objects for

many of his followers, he could not revoke or destroy

the First Amendment.

So Trump took a different tack, unleashing a barrage

of disinformation common in authoritarian states but

without precedent in the history of the American

presidency. He told more than 30,000 documented

lies in public (30,573 was The Washington Post's final

tally), on Twitter, at rallies and in interviews. If taken

as an average, it would come out to 21 lies per day

over his four-year term.

b. On July 5, 2021, CNN published an article written by Chris

Cillizza, CNN Editor-at-Large, entitled “Donald Trump just

accidentally told the truth about his disinformation strategy.” In this

article, CNN’s Editor-at-Large likens the Plaintiff to Nazi

propagandist Joseph Goebbels: “One can only hope that Trump

was unaware that his quote was a near-replication of this infamous

line from Nazi Joseph Goebbels: ‘If you tell a lie big enough and

keep repeating it, people will eventually come to believe it.’”[2]

c. On September 15, 2021, CNN published an article written by

Chris Cillizza, CNN Editor-at-Large, entitled, “Donald Trump’s

Mental Health becomes an issue again.” In this article, CNN

Editor-at-Large wrote that President Trump “continued to push the

Big Lie that the election was somehow stolen despite there being

zero actual evidence to back up that belief.” Id. (emphasis added).

d. On January 16, 2022, CNN aired a television show entitled

“State of the Union” that included host Jake Tapper making the

following comments:

2 The Trump quote referenced by Cillizza was made on July 3, 2022, in Sarasota, Florida: “If you say it

enough and keep saying it, they’ll start to believe you.” See Trump’s Big Lie Wouldn’t Have Worked Without

His Thousands of Little Lies,” https://www.cnn.com/2021/07/05/politics/trump-disinformation-

strategy/index.html (last visited July 26, 2023). Trump does not dispute making that statement.

TAPPER: Over the weekend, while Martin Luther King

III was in Arizona rallying to expand voting rights,

Donald Trump was, the same day, in the same state,

doing the exact opposite, continuing to push his big

lie.

(BEGIN VIDEO CLIP)

TRUMP: Last year, we had a rigged election, and the

proof is all over the place. They always talk about the

big lie. They’re the big lie.

(END VIDEO CLIP)

TAPPER: There is a reason Trump was in Arizona, to

push the legislature to disenfranchise the state’s voters

based on all of his deranged election lies.

e. On February 11, 2022, CNN published an article written by

Chris Cillizza, CNN Editor-at-Large, entitled, “Here’s the terrible

reality: Trump’s election lie is on the march” with a link entitled,

“New poll suggests Trump 2020 election lie is working.” In the

article, Cillizza claims:

This is the insidiousness of Trump’s big lie. It’s like an

earworm – you may hate the song but you just keep

finding yourself humming it in the shower. Trump has

created a constant low-level buzz within the American

electorate that something is wrong with the way we

conduct elections. That he has no proof doesn’t seem

to matter; by sheer repetition, his false claims are

wheedling their way into the consciousness of the

public.

Complaint (DE [1] ¶ 28) (footnotes omitted) (emphases in original).

Trump alleges that the use of the phrase “the Big Lie” constitutes defamation per

se because it “create[s] a false and incendiary association between the Plaintiff and

Hitler.” Id. ¶ 39. He argues that the use of the phrase “the Big Lie” is defamatory because

it “has incited readers and viewers to hate, contempt, distrust, ridicule, and even fear the

Plaintiff causing injury to the Plaintiff, the Plaintiff’s reputation, and the Plaintiff’s political

career.” Id. ¶ 64. As a result, Trump claims that viewers and readers “understood that

Plaintiff would be Hitler-like in any future political role.” Id. ¶ 41.

who complained about election integrity. Id. ¶¶ 31-34. He argues that CNN’s disparate

treatment of public figures is evidence of malice and “evidence that Defendant is not

reporting the news, but rather propagating its political views.” Id. ¶ 35. Trump seeks

damages in excess of $75,000, punitive damages in the amount of $475 million, pre- and

post-judgment interest, taxable costs, and trial by jury.

CNN moves to dismiss the Complaint with prejudice.

II. LEGAL STANDARDS

A. Motion to Dismiss

To survive a motion to dismiss, “factual allegations must be enough to raise a right

to relief above the speculative level” and must be sufficient “to state a claim for relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). “The mere possibility the defendant acted unlawfully

is insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca-Cola Co., 578 F.3d

1252, 1261 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian

Authority, 566 U.S. 449 (2012).

In considering a Rule 12(b)(6) motion to dismiss, the court’s review is generally

“limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d

949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th

Cir. 2002)). The court must review the complaint in the light most favorable to the plaintiff,

and it must generally accept the plaintiff’s well-pleaded facts as true. See Hishon v. King

& Spalding, 467 U.S. 69, 73 (1984). But “[c]onclusory allegations, unwarranted

Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1262 (11th Cir. 2004) (citation

omitted); see also Iqbal, 129 S. Ct. at 1949 (“[T]he tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to legal conclusions”).

B. Defamation

The parties agree that Florida law applies to this dispute. In Florida, a defamation

claim has “five elements: (1) publication; (2) falsity; (3) actor must act with knowledge or

reckless disregard as to the falsity on a matter concerning a public official, or at least

negligently on a matter concerning a private person; (4) actual damages; and (5)

statement must be defamatory.” Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106

(Fla. 2008). A claim of defamation requires a false statement of fact. Byrd v. Hustler

Magazine, Inc., 433 So. 2d 593, 595 (Fla. 4th DCA 1983) (“A false statement of fact is the

sine qua non for recovery in a defamation action”).

Statements of pure opinion are not actionable. Zambrano v. Devanesan, 484 So.

2d 603, 606 (Fla. 4th DCA 1986). “The distinction between fact and opinion is not always

easy to perceive.” Id. “Thus, the law recognizes that some comments may be pure

expressions of opinion whereas others may be mixed expressions of opinion.” Id.

Whether a challenged statement is one of fact or opinion is a question of law to be decided

by the court. Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018).

“When applying state defamation law to public figures, the First Amendment

imposes additional limitations.” Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6

F.4th 1247, 1252 (11th Cir. 2021). The statement in dispute “must be ‘sufficiently factual

to be susceptible of being proved true or false.’” Id. (quoting Milkovich v. Lorain J. Co.,

497 U.S. 1, 21 (1990)). Next, “the statement must be actually false.” Id. Finally, the

false or with reckless disregard of whether it was false or not.” Id. (quoting New York

Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). Thus, even if the statement is made

with bad or evil intent, it is not actionable under the law if it is pure opinion.3

III. DISCUSSION

This case involves political speech of the highest order. The First Amendment

“has its fullest and most urgent application precisely to the conduct of campaigns for

public office.” McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 191-92 (2014)

(quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). As a panel of the Eleventh

Circuit recently stated:

The First Amendment reflects a profound national commitment

to the principle that debate on public issues should be

uninhibited, robust, and wide-open. Accordingly, speech on

public issues occupies the highest rung on the hierarchy of First

Amendment values and is entitled to special protection. Speech

involves matters of public concern when it can be fairly

considered as relating to any matter of political, social or other

concern to the community, or when it is a subject of general

interest and of value and concern to the public.

3 Trump asks the Court to reconsider New York Times Co. v. Sullivan. See Complaint (DE [1] ¶ 47, n.41).

The Court is unable to do that; the case is legally binding on this Court. This Court has previously written

and quoted Judge Laurence Silberman that the Sullivan case has no basis in and “no relation to the text,

history or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries

of common law adjudication.” Tah v. Global Witness Publishing, Inc., 991 F.3d 231, 251 (D.C. Cir. 2021)

(Silberman, J. dissenting). But any disagreement based on textualism is effectively moot for this lower

Court once the Supreme Court has spoken. And even if Sullivan weren’t binding, the case appears to be

looked upon with favor by a majority of various iterations of the Supreme Court over the case’s nearly sixty-

year existence with ongoing expansion of the holding. See Curtis Publishing Co. v. Butts, 388 U.S. 130

(1967) (extending Sullivan’s applications beyond public officials to public figures); Gertz v. Robert Welch,

Inc., 418 U.S. 323, 339 (1974) (“We begin with the common ground. Under the First Amendment there is

no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not

on the conscience of judges and juries but on the competition of other ideas.”); Counterman v. Colorado,

143 S. Ct. 2106, 2115-16 (2023) (requiring proof that a criminal defendant—often mentally ill—subjectively

understands the threatening nature of his statements).

omitted). The contested speech in this case involves reporting and commentary on

Trump’s challenges to the legitimacy of the 2020 presidential election.

There is no question that the statements4 made by CNN meet the publication

requirement for defamation under Florida law. The next question is whether the

statements were false statements of fact. This is where Trump’s defamation claims fail.

The problem is essentially two-fold. First, the complained of statements are

opinion, not factually false statements, and therefore are not actionable. Second, the

reasonable viewer, unlike when Sullivan, Butts or Gertz were decided, no longer takes

the time to research and verify reporting that often is not, in fact, news. As an example,

only one month ago, the United States Supreme Court issued a well written 237-page

joint opinion with vastly divergent views in two cases known widely as the Affirmative

Action decisions.5 Within minutes of the release of the opinion, the free press had

reported just what the opinion supposedly said and meant although it was clearly

impossible that the reporter had read the opinion. And of course, those initial news

articles were repeatedly shared, commented upon and disseminated over social media

and still to this day the reasonable viewer very likely hasn’t read the opinion and never

will. This is the news model of today. It is far different than that in Sullivan which altered

law that existed for 175 years and has spawned a cottage industry over the last 60. But

this too is not actionable.

4 Although Trump correctly argues that all the allegations of the Complaint are relevant to the “totality of the

circumstances,” the Complaint identifies five specific statements as defamatory. (DE [1] ¶ 28). This Order,

therefore, addresses the defamatory nature of only those five statements.

5 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023).

Big Lie” was to undermine Trump’s political standing. But political motivation does not

establish falsity. The “intention to portray [a] public figure in [a] negative light, even when

motivated by ill will or evil intent, is not sufficient to show actual malice unless the

publisher intended to inflict harm through knowing or reckless falsehood.” Donald J.

Trump for President, Inc. v. CNN Broad., Inc., 500 F. Supp. 3d 1349, 1357 n.4 (N.D. Ga.

2020) (quoting Don King Productions, Inc. v. Walt Disney Co., 40 So. 3d 40, 50 (Fla. 4th

DCA 2010). See also Dershowitz v. Cable News Network, 541 F. Supp. 3d 1354, 1370

(S.D. Fla. 2021) (political motivation irrelevant to defamation claim); cf. Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657, 666-67 (1989) (profit motive behind

publication does not establish actual malice).

Acknowledging that CNN acted with political enmity does not save this case; the

Complaint alleges no false statements of fact. Trump complains that CNN described his

election challenges as “the Big Lie.” Trump argues that “the Big Lie” is a phrase attributed

to Joseph Goebbels and that CNN’s use of the phrase wrongly links Trump with the Hitler

regime in the public eye. This is a stacking of inferences that cannot support a finding of

falsehood. See Church of Scientology of California v. Cazares, 638 F.2d 1272, 1288 (5th

Cir. 1981) abrogated on other grounds, Blanchard v. Bergeron, 489 U.S. 87 (1989).6

Church of Scientology is similar to the present case. There, a city official made

numerous public statements opposing the church’s presence in the city. In one he stated:

“Scientologists are bringing to the city a helter-skelter world and philosophy.” The church

sued, stating that “the term ‘helter-skelter’ had, by reason of a best-selling book and

6 Decisions of the former Fifth Circuit rendered prior to close of business on September 30, 1981, are

binding on this Court. See Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).

policy of [a] generation of racial strife and indiscriminate mass murder allegedly espoused

by the infamous and widely publicized Charles Manson.” The church claimed that by

using the term “helter-skelter,” the defendant intended “to convey to the public that [the

church] was dedicated to promotion of [a] generation of racial strife and indiscriminate

mass murder.” Id. at 1285, n.11. The former Fifth Circuit found no defamation, stating

that it was “not prepared to build inference upon inference in order to find defamatory

meaning in a statement.” Id. at 1288. Neither is this Court able to create an inference of

defamatory meaning.

Trump alleges that “the Big Lie” refers to a Nazi “propaganda campaign to justify

Jewish persecution and genocide.” (DE [1] ¶ 23). Like Trump and CNN personalities

Ashleigh Banfield and Paul Steinhauser (see (DE [1] ¶ 24), the Court finds Nazi

references in the political discourse (made by whichever “side”) to be odious and

repugnant. But bad rhetoric is not defamation when it does not include false statements

of fact. CNN’s use of the phrase “the Big Lie” in connection with Trump’s election

challenges does not give rise to a plausible inference that Trump advocates the

persecution and genocide of Jews or any other group of people. No reasonable viewer

could (or should) plausibly make that reference. See Miami Herald Pub. Co. v. Ane, 423

So.2d 376, 389 (Fla. 3rd DCA 1982) (quoting Walsh v. Miami Herald Pub. Co., 80 So. 2d

669, 671 (Fla. 1955)) (“The language of the publication declared upon should not be

interpreted by the extremes but should be ‘construed as the common mind would

ordinarily understand it.’”). And even if the phrase “the Big Lie” could somehow plausibly

compel a reasonable viewer to perceive Trump as “Hitler-like,” or “authoritarian”, such

terms are not statements of fact subject to defamation laws “because of the tremendous

Buckley v. Littell, 539 F.2d 882, 893 (2d Cir. 1976).7 A connotation or implication is only

actionable if it is “provably false.” Coral Ridge Ministries Media, Inc., 6 F.4th at 1252 (citing

Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990) (“a statement on matters of

public concern must be provable as false before there can be liability under state

defamation law, at least in situations like the present, where a media defendant is

involved”)). Being “Hitler-like” is not a verifiable statement of fact that would support a

defamation claim. Buckley, 539 F.2d at 893.8

Trump argues that a motion to dismiss is not the proper avenue for evaluating the

defamatory nature of CNN’s comments. The Court disagrees. “Whether the defendant’s

statements constitute defamation … is a question of law for the court to determine.”

Turner, 879 F.3d at 1269 (affirming dismissal of defamation case at motion to dismiss

stage) (citing Brown v. Tallahassee Democrat, Inc., 440 So.2d 588, 590 (Fla. 1st DCA

1983)). “Whether the publication is defamatory becomes an issue of fact for the jury only

where the publication is susceptible of two reasonable interpretations, one of which is

defamatory.” Id. CNN’s statements while repugnant, were not, as a matter of law,

defamatory. The case will, therefore, be dismissed with prejudice.9 Accordingly, it is

hereby

7 In Buckley, the court held that “political labels” such as “fascist,” “fellow traveler,” and “radical right” were

too imprecise to be proven as statements of fact. 539 F.2d at 893.

8 Trump cites three cases where references to Hitler were deemed defamatory. See State v. Guinn, 347

S.W.2d 44, 46-47 (Tenn. 1961); O’Donnell v. Philadelphia Rec. Co., 51 A.2d 775, 777 (Pa. 1947); Goodrich

v. Rep. Pub. Co., 199 S.W.2d 228, 230 (Tex. Civ. App. 1946), writ refused. But these cases were decided

before New York Times Co. v. Sullivan and its progeny and, therefore, have little to no bearing on this case.

9 A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the

plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before

the district court. Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002).

ORDERED AND ADJUDGED that CNN’s Motion to Dismiss (DE [20]) is

GRANTED. Plaintiff's Complaint (DE [1]) is DISMISSED WITH PREJUDICE. The Clerk

of Courtis directed to CLOSE this case and DENY AS MOOT any pending motions.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 28th day of

July 2023. \

RAAG 5

UNITED STATES DISTRICT JUDGE

Copies furnished counsel via CM/ECF

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