# Trump v. Cable News Network, Inc.

> District Court, S.D. Florida · July 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10122236

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** July 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10122236

## How later opinions describe it (automated extraction)

- affirming dismissal of defamation case at motion to dismiss stage

## Opinion text

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-61842-CIV-SINGHAL

DONALD J. TRUMP,

Plaintiff,

v.

CABLE NEWS NETWORK, INC.,

Defendant.
______________________________________/
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10122236. Public record. Not legal advice.