Judge Tosses Laughably Stupid SLAPP Lawsuit The Trump Campaign Filed Against The NY Times

from the because-it-was-never-meant-to-win dept

A little over a year ago we wrote about a laughably stupid SLAPP suit that the Trump campaign, represented by Charles Harder, filed against the NY Times. As we noted at the time, the lawsuit appeared to have no intention of succeeding -- it was purely performative nonsense. The lawsuit claimed that an opinion piece by Max Frankel was defamatory because it noted that whether or not there was any explicit collusion between the Trump Campaign and Russia, it didn't matter, since both sides seemed to expect certain outcomes and allowed them to act accordingly.

We also pointed out that the lawsuit completely misrepresented the article, pretending that Frankel's thesis -- again, that there didn't need to be any explicit deal -- was Frankel saying that there was "collusion" between the two. The case made no sense no matter how you looked at it. Frankel's article was an opinion piece -- and opinions aren't defamatory. It didn't allege what the campaign's lawsuit says it alleged, and there was no way in hell it could possibly meet the actual malice standard necessary for defamation.

It took a year, but the Supreme Court of New York (which, contrary to its name, is more like a district court), has tossed out the lawsuit, though denying the NY Times' request for sanctions against Harder. As we expected, this was not a difficult decision for the court to come to. First, it was obviously opinion, and thus not defamatory:

First, while the complaint alleges that the terms used in the article, such as “deal” and “quid pro quo,” are defamatory and false, Mr. Frankel’s commentary in his article is nonactionable opinion, and the overall context in which the article was published, in the opinion section of the newspaper, signaled to the reader that “the broader social context and surrounding circumstances [indicate] that what is being read . . . is likely to be opinion, not fact.” Gross v. N.Y. Times Co., 82 N.Y.2d 146, 153 (1993) (internal quotation marks and citation omitted). This is because “[t]he dispositive inquiry, under either Federal or New York law, is ‘whether a reasonable [reader] could have concluded that [the articles were] conveying facts about the plaintiff.’” 83 N.Y.2d at 152 (alterations in original) (quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139 (1992)); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) (finding that statements of opinion are not actionable because “there is no such thing as a false idea”).

Then there's the actual malice problem -- in that the campaign failed to make any real arguments that would show that Frankel knew his statements were false or were made with reckless disregard for the truth (meaning he had substantial doubts about their truth):

Third, even if Mr. Frankel’s commentary was actionable as factual assertions, and even if such assertions were of and concerning the Trump campaign, the complaint fails to allege facts sufficient to support the requirement that the Times published the challenged statements with actual malice, meaning “knowledge that [the statements] were false, or [made] with reckless disregard for the truth.”... In this regard, bias, or ulterior motive does not constitute actual malice... This heavy burden exists because news organizations function as a platform for facilitating constitutionally protected speech on issues of public concern and courts will not impose defamation liability against these entities absent a clear showing of actual malice.

There was one other reason for the dismissal... which I am a bit confused about. The judge claims that the Campaign (the plaintiff in this case) has no standing, since the comments in the article were not about it:

Second, the challenged statements are not “of and concerning” plaintiff, which is a necessary element for a defamation action. For example, in Lazore v. NYP Holdings, Inc., 61 A.D.3d 440 (1st Dep’t 2009), the Appellate Division, First Department dismissed a complaint alleging defamation because “the offending statements were directed against a governing body . . . , rather than against its individual members.” 61 A.D.3d at *1. Further, a corporate entity has no standing to sue over statements that concern an entity’s employees or affiliates, but not the entity itself.... Here, the focus of Mr. Frankel’s column was the former President’s associates and family members, not the Trump campaign itself.

I find that a lot less compelling, since the thrust of the article was about the Campaign, as represented by the President's associates and family members, but either way this case was getting dismissed for the other reasons.

As for sanctions, the judge rejects them... with no explanation at all. However, with New York now having a shiny new more useful anti-SLAPP law, I do wonder if the Times might now use that to seek fees...

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Filed Under: 1st amendment, actual malice, anti-slapp, charles harder, defamation, donald trump, max frankel, new york, opinion, slapp, standing

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  1. icon
    Stephen T. Stone (profile), 12 Mar 2021 @ 9:39am

    Man, look at all that winning going on.

    I mean, it ain’t Trump winning, but still.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 12 Mar 2021 @ 10:23am


    I've not closely followed the ravings of all madmen, but I think I recall hearing people in a related crowed call a court loss a 'win' because reasons.

    reply to this | link to this | view in thread ]

  3. This comment has been flagged by the community. Click here to show it
    Anonymous Coward, 12 Mar 2021 @ 10:55am

    So if people started writing opinion pieces as to why they believed that Joe Biden (Or Mike Masnick) were attracted to young children, that would be OK. Because it's an opinion piece after all. Maybe the real solution is just that as these misleading pieces pile up, a new sources credibility would begin to diminish and people would stop reading them. But, in today's world, the opposite seems to have happened. The more outrageous something is, the more people flock to it.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 12 Mar 2021 @ 10:59am

    I miss GrokLaw

    Damn I miss GrokLaw. Almost ten years has passed since it closed down but I still miss it. Sigh.... I propose a toast to GrogLaw and PJ. Cheers!

    reply to this | link to this | view in thread ]

  5. icon
    Bloof (profile), 12 Mar 2021 @ 11:15am

    Cancel culture has gone too far! It's getting as though people can't voice their opinions on matters of the day without being attacked and silenced by the woke left... Oh, wait, it's Trump rying to silence people, therefore fiine.

    reply to this | link to this | view in thread ]

  6. icon
    ECA (profile), 12 Mar 2021 @ 11:27am

    what makes an opinion, NOT opinion

    How far can you go with an opinion, and finally run out of it to FACTS. But Facts are not able to be Sued. In the USA what can be considered liable or with malous.
    All a person need to, is declare it opinion or facts.
    Is it the conclusion that can be sued?

    reply to this | link to this | view in thread ]

  7. icon
    That One Guy (profile), 12 Mar 2021 @ 1:11pm

    Do you want abuses of the court system? This is how you get them

    Judges refusing to issue sanctions for garbage like this is why lawyers and the toddlers in suits employing them feel so safe filing such suits. Start cracking heads and issuing fines and I've little doubt that while there would still be people filing frivolous and/or performative lawsuits the number would shrink quite a bit because all of a sudden there would be an actual costs to doing so, and abusing the courts for personal gain is a lot less attractive an idea when it comes with a price tag.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 12 Mar 2021 @ 5:19pm


    Yes, literally anyone can do that. It is not a violation of law whatsoever.

    reply to this | link to this | view in thread ]

  9. icon
    Toom1275 (profile), 12 Mar 2021 @ 8:02pm


    Only as long as you don't assert false "facts" as the basis for your "opinions."

    reply to this | link to this | view in thread ]

  10. icon
    ECA (profile), 13 Mar 2021 @ 11:08am

    Re: Do you want abuses of the court system? This is how you get

    its amazing that we created laws in the 1930's and the Fines never changed.

    reply to this | link to this | view in thread ]

  11. icon
    bhull242 (profile), 14 Mar 2021 @ 3:37pm


    So if people started writing opinion pieces as to why they believed that Joe Biden (Or Mike Masnick) were attracted to young children, that would be OK.

    It depends. If by “OK” you mean “is and ought to be absolutely protected by the First Amendment and should not be sued over as defamatory or false light or anything like that”, and the opinion piece itself did not allege or imply any false facts that they knew or really should have known to be false in explaining how and why they formed that opinion, then yes, that would be perfectly okay. It would also be okay if it was obviously or at least probably satirical. If you mean something else by “OK”, then unless they have really good reasons for doing so, I’d say probably not, but I wouldn’t necessarily support a lawsuit over it. And either way, if the opinion piece does not fit the conditions I mentioned earlier, then for the most part, no matter what definition of “OK” you mean, that would not be OK.

    However, even if it’s not “OK”, that doesn’t necessarily mean I’d support taking the writer and/or publisher to court over it. At the very least, I’d say trying to contact the writer or publisher to at least try to work something out outside of court before possibly resorting to legal threats or legal action. Legal action should be a last resort when dealing with speech, especially online speech, particularly due to the Streisand effect. Even if the opinion piece is defamatory, depending on a variety of factors, it’s entirely possible that the opinion piece was largely unnoticed by most people, and by trying to censor it, you may wind up making it seen by a lot more people, so even if you are morally, ethically, legally, and factually right to sue over the piece, it may just backfire on you.

    Again, just because someone’s speech is objectionable or hurts your feelings or damages your reputation, that’s not enough reason to ignore the 1A and try to censor it, and I will still defend people’s right to say objectionable things, even if they aren’t true, so long as it is reasonable for them to think it is true and actually believe it’s true, and to voice objectionable opinions. I don’t have to like or agree with what is being said to defend their right to say it. Sometimes, there may be unfortunate consequences. However, the law is not and should not be a shield against any negative consequences even if they weren’t your fault.

    reply to this | link to this | view in thread ]

  12. identicon
    Hot FeOOH, 16 Mar 2021 @ 11:32am

    But, Maz: the stragety succeeded in stopping the attack!

    First, you expanded what should be brief note because of your TRUMP DERANGEMENT SYNDROME!

    Now, doesn't matter how silly you think it. Point is to oppose and raise the stakes, put your attacker to some expense and some risk. That's why they're named thus, see?

    BTW: I don't agree with SLAPP laws, those simply license "strategic defamation" by powerful media outlets with a veil of "opinion", as here.

    But YOU should recognize that suits still work! YOU have quit defaming Ayyadurai since settling his suit despite technically he didn't win.

    reply to this | link to this | view in thread ]

  13. icon
    bhull242 (profile), 16 Mar 2021 @ 6:11pm

    Re: But, Maz: the stragety succeeded in stopping the attack!

    And thus you miss the point. If it was actually defamation, then you’ll still win regardless of any anti-SLAPP laws. In other words, a loss means no case. And the only reason Techdirt doesn’t talk about Ayyadurai anymore is because nobody cares about him.

    reply to this | link to this | view in thread ]

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