Trump’s battles with the media troubling

Two events recently occurred relating to the media and President Donald Trump. To some they may appear unrelated, but they share a common thread. Colbert on the other hand was the leading late night host and each night his cutting, opening, monologue was pretty much directed at Trump’s actions of the day. It is no secret that Trump holds Colbert, and other late-night hosts, in disdain due to their criticism of him.

Recall that CBS is owned by Paramount, which recently settled a spurious fraud action brought by Trump on account of a 60 Minutes interview of Kamala Harris, paying Trump $16 million and, according to Trump, agreeing to provide advertising for Trump’s causes worth $16 million. Some have referred to the settlement as a merger tax because Paramount is looking for government approval of its merger with Skydance Media, and that merger must be approved by Trump‘s appointee at the Federal Communications Commission. In furtherance of the merger, Skydance’s chair met with the FCC head on July 18, the day after CBS announced it would shutter Colbert’s show. With a merger pending the aroma of CBS’s timing of the public announcement of its termination of Trump’s critic is odious.

The second event that occurred was the publication by the Wall Street Journal of the substance of a letter that it reports was written by Trump to Jeffrey Epstein to celebrate his 50th birthday. The Journal reports the letter included a drawing of a naked woman and the signature “Donald.” It referenced “secrets.”

Trump, before publication and after learning of the paper’s intent to publish the existence of the letter, called Rupert Murdoch, the owner of the Wall Street Journal, and denied writing the letter. Trump told him if the substance or existence of letter was published naming him as author he would sue both Murdoch and the Wall Street Journal, ostensibly for defamation and Trump has followed through, suing the paper and Murdoch in the Southern District of Florida.

Trump’s White House spokesperson Karoline Leavitt also denied that Trump authored the letter, although she was merely parroting his position as she had no firsthand knowledge of a letter written nearly 20 years ago. Despite Trump‘s threats to sue both Murdoch and the Wall Street Journal, the paper ran the story on July 17, and it was quickly reported by other media.

We do not know to what effect, if any, the need for FCC approval of the proposed merger of Paramount and Skydance had on the CBS’s settlement with Trump. Nor do we know whether the timing of the announcement that CBS would end Colbert’s show, the day before Skdance’s chair meet with the FCC, was influenced by the proposed merger and a desire to submit to and please this administration. But to us, it looks like more than coincidence.

We do know two things, however. First, Paramount and Skydance still seek and need government approval of their merger from the Trump administration. And second, Colbert’s opening monologue each evening is highly critical of Trump, a man who is known to have thin skin. It would not be a far stretch to imagine that CBS’s parent, Paramount, wanted to avoid any further confrontation over contents of the show, and bent a knee to Trump by acting as a censor on behalf of what it believed would make Trump happy, by announcing the removal from the airwaves of a constant source of biting criticism of his administration. And indeed, upon learning of Colbert’s cancellation, Trump retorted, “I absolutely love” that Colbert was fired.

Trump’s suit of Murdoch and the Wall Street Journal over publication of the existence and terms of Trump‘s purported letter to Epstein is a far more blatant effort on Trump‘s part to stifle the media’s reporting of news that Trump does not want the public to see. His suit against the WSJ is quite similar to his actions against ABC and CBS, and Trump has threatened, it is reported, that he will make Murdoch personally testify in the discovery phase of this litigation. He’s not the only president to strike out at the media. Abraham Lincoln went so far as to jail editors and suppress publications in the name of winning the Civil War, according to Forbes Magazine, and John F. Kennedy cancelled his subscription to the New York Herald Tribune.

Trump appears to forget that it is his burden to establish that the publication of the existence and terms of the letter are defamatory, meaning it is not only untrue that Trump wrote and sent this letter, but that it has an adverse effect on his reputation. He will need to explain why at the time the letter was sent, there were many photos of Trump and Epstein together and recordings where Trump called Epstein a friend.

If it turns out that Trump is able to establish that the letter is not of his authorship, it is still likely not to be defamatory within the standard imposed by New York Times v. Sullivan, which requires the publisher to know or should have known that the publication was not true. Trump does not have a reputation for veracity, and we are quite sure that when the Journal’s lawyers met with Murdoch over Trump‘s claimed denial of authorship, his word alone and their vetting of the source and authenticity of the letter would not help to establish the ‘should have known’ requirement of Sullivan.

Trump also forgets that discovery is a two-way street and that he will need to be the primary witness on his own behalf, and that to deny authorship he will be required to take the witness stand in this suit against Murdoch and the WSJ. Murdoch does not appear to have any business with the federal government at this time, that like CBS will influence his decision to settle this case. Nor does Murdoch strike us as the sort of defendant that would allow his flagship newspaper, or himself, to be pummeled by a bully.

And finally, if Trump thought suing Murdoch would help him to take eyes off the Epstein records that so many of his supporters want released, he was wrong; his suit merely adds to the story and helps to keep it alive.

Editorial Advisory Board Members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.