It’s hard to keep up with the cascade of libel suits now filling the courts. Usually the idea in a comm law course is to focus only on the libel suits that are instructive or set a precedent of some kind. However, it’s also important to note current cases so that the context of the law is appreciated.
Dominion v Fox, 2023 — Although the Dominion v Fox case was settled on April 19, 2023, a few days before the trial began, another voting machine company libel suit continues. against Fox News, One America News Network and three Trump advisors.. The Dominion settlement came after Fox underestimated the strength of the case against them, according to a May 27, 2023 NY Times article.
The Smartmatic voting machine company is continuing its libel case against Fox over lies about election fraud in 2020. The allegation is that Fox and OANN aired a pattern of defamatory claims from Trump supporters about illegal manipulation of vote counts that threw the 2020 election to Joe Biden. Depositions have shown that Fox personalities did not believe the claims at the time they were aired. One Fox personality, Tucker Carlson, was forced to resign from Fox News due (in part) to the disgrace he brought onto the network. Another personality, Sean Hannity, claimed “journalistic privilege” to protect his sources. News Corp. (the Fox parent) also relied on previous cases defining “neutral reporting.”
Rebekah Vardy v Coleen Roony (UK case) 2022 – This is the “Wagatha Christie” case of UK tabloid fame, so-named because the two are “WAGs” (wives and girlfriends ) of famous UK football players and because it took investigation to get to the bottom of the cases (Therefore WAG combined with Agatha Christie). According to Wikipedia, the dispute began in 2019, when Rooney accused Vardy of leaking posts from her private Instagram account to the British newspaper The Sun. These supposedly private posts involved things like flooded basements and trips to Mexico. Roony was able to prove that Vardy had leaked the posts and was awarded about 1.5 million British pounds. Helen Lewis, a writer for The Atlantic, called it “the most ill-advised defamation case” since Oscar Wilde‘s dispute with the Marquess of Queensberry.
John Oliver lampoons coal boss Bob Murray’s libel suits
Johnny Depp v Amber Heard 2022 – A complicated “domestic” dispute in which two movie stars exposed their intimate lives to a world hungry for scandal. The case played out against a background of allegations and counter-allegations of physical and mental abuse. Depp won, so to speak, and Heard will end up paying Depp $1 million to settle the case. But really, both lost in the court of public opinion.
Robert E. Murray v John Oliver and HBO 2017 This is another one of those totally ill-advised libel suits. Coal baron Bob Murray sued John Oliver, asking the court for an injunction to stop a program in which Oliver was calling him a “geriatric Dr. Evil” who was “on the same side as black lung.” The courts tossed the suit (granted a pre-trial motion to dismiss by Oliver and HBO attorneys), as they did with over a dozen other defamation lawsuits brought by Murray against journalists and other critics of his operations, his company, and the coal industry.
Trump related libel suits
Donald Trump gets his own category of libel suits because he has filed so many. This is largely because he has been the butt of an unending stream of humor that his own behavior encourages. Rather than consider a more mature approach to his own life, Trump attacks the Constitutional basis of the nation’s political life. Take this Tweet about Saturday Night Live, for instance. “How do the Networks get away with these total Republican hit jobs without retribution?”
Why does he bother? That’s obviously not a serious libel suit. “Donald J. Trump is a libel bully,” explains Susan E. Seager in the Media Law Resource Center, who has kept count of Trump’s 4,000 plus lawsuits over 30 years.
1984 — Trump’s first libel suit was in response to criticism of a proposed building in New York harbor.
2005 — TrumpNation: The Art of Being the Donald was a 2005 biography of Donald Trump was the subject of a $5 billion lawsuit against author Timothy L. O’Brien. It was dismissed in 2009, and an appeals court affirmed the decision in 2011.
2010 — Trump University filed a libel suit against Tarla Makaeff, a former student, who initially sued to recover money shew paid to the private “university.” The case was dismissed in 2014 and Trump “U” was ordered to pay Makaeff’s legal costs.
2014 — Trump sued “Miss Pennsylvania,” a woman who alleged his Miss USA 2012 beauty pageant was rigged.
Before he was president, he also sued the Chicago Tribune for criticizing his taste in architecture — and lost. He sued a former student at the former Trump university for saying it’s not really a university — and lost. (Susan Seager at the Media Law Resource Center has details).
Trump sued the New York Times on Feb. 26, 2020, and the Washington Post, on March 3, 2020, for libel concerning opinions about Trump’s relationship with Russian dictator Vladimir Putin. In the suit, Trump claimed that the Times knowingly published the supposedly false charge that there was a “quid pro quo” with the Russians in return for their help in the 2016 election. (The plaintiff’s petition can be read here.) This “quid pro quo” was supposedly described in an op-ed written by former New York Times editor Max Frankel and published March 27, 2019. In the op-ed, Frankel rejected small concerns about “collusion” with Russia in the Trump campaign. The much larger issue, he said, involved the relationship between Trump and Putin. Both of these suits were dismissed. (See “Another laughable libel suit,” this site).
Why does Trump file so many libel suites? These are political tactics, not serious lawsuits, and Trump certainly knows enough about libel to know that the suits are frivolous. ProPublica president Richard Tofel saw it this way:
“What is happening here is a cynical play to establish a talking point. Now, whenever the nation’s leading newspaper reveals some new abuse of power or malfeasance in office, Trump can point out he is suing the Times. Perhaps, he may hope, the Times news pages will even pull a punch or two to avoid being seen as a presidential adversary.”
Tofel goes on to say “I hope and trust they will not.”
Meanwhile, Trump lost a libel suit brought by columnist E. Jean Carroll in 2019 after Trump was convicted in civil court of sexual assault and then, when he kept lying about the case, was sued for libel in a second trial. At last count in January 2024, Trump owed Carroll $83.3 million. That could rise, since a second libel trial might take place later in 2024.
Trump’s overall plan would be to dismantle libel laws and make it easier to sue media organizations for unfavorable coverage. But only the US Supreme Court could change the law of libel. According to First Amendment Watch: “There is little that the President can actually do to change the libel laws. There is no federal law on libel. State laws control libel, and all such laws are subject to stringent First Amendment protections for the press and other speakers that the Supreme Court has imposed through cases such as the landmark New York Times v. Sullivan decision in 1964. ”
Justice Clarence Thomas has called for re-evaluation of libel laws — “New York Times (v Sullivan, 1964 decision) and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote in McKee v Cosby, 2019. “The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas said.
In response, many First Amendment defenders see the national standard in Sullivan as crucial. “Before Sullivan, some states allowed libel plaintiffs to triumph even if the allegedly defamatory statement was proved true, so long as it was published with hostility toward the plaintiffs,” wrote Mark Joseph Stern in a February 2019 Slate magazine piece.
An additional issue, as noted earlier, is that under state laws, libel suits were often used to silence civil rights advocates in the American South before the NY Times v Sullivan case of 1964. In one typical example from South Carolina, a Black editor — John Henry McCray — was charged with criminal libel and forced to serve two months on a chain gang in 1954 for simply reporting the last words of a death-row inmate.