News Analysis: Media corporations surrender legal protections to Trump

By Elizabeth Tharakan >>

National news organizations embolden President Donald Trump to sue them when they pay out million dollar settlements to Trump when his legal claims are weak and probably would fail in court. That is the consensus of media lawyers and scholars.

The media organizations are surrendering the legal protections that New York Times v. Sullivan offers in defamation cases and the further protections of anti-SLAPP laws protecting against frivolous lawsuits.

In two cases  corporate economic considerations appear to have taken precedence over journalistic considerations.

• Trump sued CBS for $10 billion based on an accusation of selectively editing a “60 Minutes”  interview with Vice President Kamala Harris. Paramount, the parent company of CBS, plans a multimillion-dollar merger with Skydance that Trump could block by having his appointee with the Federal Communications Commission, Brendan Carr, intervene. Therefore, Paramount is attempting to settle the suit to protect its business interests, even though the 60 Minutes producer says the edits were correct and that he won’t apologize. “There have been reports in the media about a settlement and/or apology,” the producer, Bill Owens said in a previously reported NYTimes story. “The company knows I will not apologize for anything we have done.”

• Disney’s ABC agreed to give $15 million to Trump’s library and apologize for George Stephanopoulos’ use of the word “rape” to refer to Trump’s sexual assault of E. Jean Carroll in a New York department store in the mid 1990. In this case, a New York jury found that Trump had sexually assaulted Carroll but had not met the criminal definition of rape. But the federal judge in the case concluded that “It…is the ‘truth,’ as relevant here, that Mr. Trump digitally raped Ms. Carroll,” Trump denied assaulting Carroll.

Professor Jared Schroeder of Missouri School of Journalism, said in an interview, “When these groups settle, it emboldens groups to sue. if these cases went through the system, it’s likely that the media organizations would win. By accepting settlements, news organizations are encouraging these other public officials to keep suing because it works. Some of these lawsuits are ways for politicians to make a public statement, to create fear so that others won’t write about them critically, and to cause emotional drain for reporters.”

Mark Sableman, a partner at Thompson Coburn in St. Louis and media law expert, made a similar point. He wrote in an email:

“For many years, most major news organizations vigorously defended meritless cases, even when the costs of defense were greater than settlement costs.  They did so believing that this was the best strategy in the long run. I believe this strategy worked well,”

“It rebuffed attempts at intimidation by asserting and explaining the time-honored legal doctrines and defenses that protect journalism.  It discouraged the bringing of further meritless and marginal cases. It encouraged worthy reporting, by showing reporters and editors that their professional work would be supported.  And it educated courts in publication law and defenses, and the policies behind them. Some of that has changed in recent years because of the financial pressures faced by traditional media outlets, and more cases are settled now than in the past.  But the serious concern remains that failing to defend professional and responsible journalism will only open the door to further attempts at intimidation.”

Gregory Magarian, Thomas and Karole Green Professor of Law at Washington University in St. Louis and a First Amendment expert said, “There could be no more axiomatic instance of free speech designed to be protected by New York Times v. Sullivan than what is being said against the most powerful elected official in the country.  

“People need breathing room to criticize public officials robustly,” Magarian added. “There are First Amendment scholars who have written reams about how important that function is.”   The settlements will embolden powerful people to more aggressively pursue defamation cases. “Somebody is going to take one of these cases to the Supreme Court asking them to change the law,” Magarian predicted.

Courtney Radsch, a journalist and scholar at the Center for Journalism & Liberty, pointed out that some of America’s largest media companies are settling cases with Trump.

 “These are the wealthiest media companies in America,” she said.  “What happens when a smaller news organization or local news outlets want to criticize the president? The FCC has promised to weaponize broadcast licenses in a democracy where we have independent regulators. This is emblematic of what happens when you politicize independent regulatory oversight agencies.

“Trump has threatened the media, and instead of standing up and fighting cases that they’re likely to win, they settle. Yes, this intimidation works,” Radsch said.

To provide some background, New York Times v. Sullivan is a 1964 case arising out of an advertisement taken out by African American civil rights leaders describing the policing tactics and violence used in Alabama against civil rights demonstrators.

The ad contained small mistakes. It exaggerated the number of times police had arrested the Rev. Dr. Martin Luther King Jr., misstated the patriotic song demonstrators were singing and claimed falsely that police were locking protesters out of an eating facility.

 An Alabama police commissioner sued the New York Times calling the ad defamatory. The court ruled unanimously that public officials have to prove “actual malice” to win a libel case.  To prove actual malice, the officials has to show the reporters exhibited a reckless disregard of the truth. That high standard of proof is needed, the court said, to provide breathing room for a democracy.  

In addition New York Times libel decision, 36 states have passed anti-SLAPP laws which allow the news organizations First Amendment protection against frivolous lawsuits. The law is usually on the side of news organizations: truth and opinion are vigorous defenses against suits.

Elizabeth Tharakan is an attorney and doctoral candidate at Southern Illinois University’s College of Arts and Media.

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