Executive Watch: Trump’s weaponization of civil lawsuits — First Amendment News 462

This is the latest installment of Professor Timothy Zick’s “Executive Watch,” which debuted with First Amendment News 457. This post focuses on civil suits by government figures, mainly by the sitting president. It comes at a time when the legitimacy of the New York Times v. Sullivan case is being challenged, and while efforts to establish a national anti-SLAPP law are being thwarted.

Several future posts are in the works, as well as a Resources Page, so stay tuned. – rklc

Presidents and suppressive campaigns: Today’s unprecedented practices 

Executive Watch is an effort to record and analyze the many First Amendment-related conflicts and concerns arising during the second administration of President Donald Trump. One of the challenges in assessing the administration’s approach to the press and critics is to identify and explain what is distinct or unique about it. After all, the policies and actions of every administration have raised First Amendment issues and concerns. John Adams had reporters jailed under the Sedition Act, Richard Nixon had his “enemies list,” President Obama’s Department of Justice was criticized for prosecuting reporters in national security cases, and President Biden’s administration was accused of pressuring social media platforms to censor disfavored speech.

However, as I explained in my introductory post for Executive Watch, what is distinct about the current president and administration is the depth and breadth of the campaign they are waging against critics, both inside and outside government.

Among other actions, the president and various government agencies have attacked the press and called for the firing of individual reporters; excluded media outlets from official events for failing to use preferred geographic language; retaliated against civil servants who investigated or prosecuted crimes Trump allegedly committed; punished private law firms for lawful advocacy; used the FCC and other agencies to investigate and sanction media outlets for negative coverage; scrubbed government websites of truthful information about racial health disparities and gender discrimination; threatened to prosecute critics of Elon Musk’s efforts to downsize the federal government; arrested a green card holder for participating in campus protests; and suppressed disfavored speech about diversity, equity and inclusion in workplaces and on university campuses.

That is just a partial list.

Notably, these efforts have been undertaken not just by Trump, but also through actions by a host of federal agencies including the Department of Justice, the Department of Education, the Federal Communications Commission, and the Department of State.

The current situation represents an unprecedented and coordinated effort to use courts, governmental agencies, and even private individuals to engage in retribution, intimidate media and non-media critics, impose official orthodoxies, and punish dissent.

Civil lawsuits as engines of leverage and intimidation

“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.” — Donald J. Trump

One aspect of the broader current agenda involves the filing of civil defamation, consumer fraud, and other lawsuits against the press and others who publish disfavored information or opinions critical of Trump or his administration.

Like any other citizen, a political candidate, president, or ex-president has the right to file lawsuits and seek redress for reputational or other harms. Indeed, prior to Trump, at least one ex-president did so. However, the extent to which Trump has relied, and continues to rely, on defamation and other civil lawsuits against media and non-media defendants is a unique aspect of a broader campaign against political critics. No other political candidate or president has wielded the civil lawsuit as a political sword quite as Trump has.

When it comes to civil litigation, Trump is in a league of his own. By one account, Trump has been involved in more than 4,000 civil lawsuits over the years, ranging from business disputes to defamation and other actions. Even for someone like Trump, who has been involved in a variety of complex business ventures, that is a remarkable number of civil actions.

One lesson Trump likely learned from his litigation experience is that lawsuits can be an effective form of leverage in business and other dealings. Indeed, even if a claim has no or little legal merit, it can be useful in terms of exhausting, intimidating, and silencing opponents.

For a long time, many of Trump’s civil lawsuits were business-related. However, since he became a political candidate, Trump’s filing of defamation actions has significantly spiked. As a political candidate and officeholder, he has pursued several defamation lawsuits against media and non-media defendants.

Trump has sued CNN, The Washington Post, and The New York Times, as well as local media outlets, for critical coverage of his campaign and first term as president. For example, he brought a $475 million defamation lawsuit against CNN over the network’s use of the term “the Big Lie” to describe his false claims that he won the 2020 election. That claim was dismissed. More recently, Trump brought a $20 billion civil action against “60 Minutes” and CBS for allegedly editing an interview with Kamala Harris in ways that obscured or improved her answers to questions.

Trump also sued ABC News and George Stephanopoulos for stating that he had been found liable for “rape” in a civil case. Finally, Trump sued The Des Moines Register and its parent company, Gannett, for publishing a flawed poll showing Trump trailing Harris in the 2024 presidential election in Iowa. He also filed suit against the pollster herself, J. Ann Selzer. All of this despite Trump ultimately winning Iowa handily, raising questions about what damages he allegedly suffered.

Trump has also filed civil lawsuits against non-media defendants. For example, he has sued the Pulitzer Board for recognizing The New York Times for its reporting on the Russia investigation. (That suit has been allowed to proceed, at least for now.) 

Trump and his lawyers have also been expanding their civil suit repertoire. He sued CBS and the defendants in the Iowa case for consumer fraud and election interference. His lawsuit against CBS also contains a claim under the Lanham Act, which provides civil damages for false advertising. These suspect allegations target core press functions and political speech.

Additionally, Trump has vowed to file many more civil lawsuits against those who publish unflattering opinions or disfavored information. He has claimed such legal action is necessary to “straighten out the press” and punish those he accuses of fraud and election interference.

Poor litigation track record

For all his litigation experience, Trump has a very poor track record in civil lawsuits, particularly those claiming defamation. In fact, he nearly always loses — sometimes very badly. Trump has even been ordered to pay media defendants substantial damages for filing harassing and frivolous defamation lawsuits. Some states have laws that impose liability on plaintiffs for bringing so-called SLAPPs (Strategic Lawsuit Against Public Participation) — essentially, defamation actions intended to silence or intimidate critics. Trump has been found liable for damages under such laws. 

This is one context in which Trump may not mind being a loser or even paying damages. Weaponizing civil lawsuits and courts is not about restoring Trump’s damaged reputation, recovering damages, protecting consumers, ensuring the integrity of elections, or any other legitimate private or public interest. Rather, they are a means of punishing critics and chilling, through expensive and often frivolous litigation, the publication of unfavorable or unflattering information and opinion.

Civil lawsuits as political weapons

“Donald Trump is abusing the legal system to punish speech he dislikes. If you have to pay lawyers and spend time in court to defend your free speech, then you don't have free speech.” — Adam Steinbaugh

Like many other aspects of the Trump administration’s agenda, civil lawsuits serve important political purposes. They are part of the campaign to suppress dissent, undermine the press, and entrench executive power. 

Decades of litigation have likely convinced Trump that the prospect of defending against frivolous and strategically harassing claims will either convince defendants to settle, trim their critical reporting, or both. In that sense, civil lawsuits are an effective means of intimidating, leveraging, and silencing opponents.

The civil lawsuits communicate political narratives about the press as an institution, hoping to further weaken its public standing. Many of Trump’s civil complaints present hyperbolic and unsupported claims concerning Trump, the press, or both. They also highlight longstanding grievances against the media and other critics. Regardless of their outcome, Trump will be applauded by political supporters for waging war against the press, which Trump continues to describe as “the enemy of the American people.” 

In a broader sense, civil lawsuits are part of a campaign to entrench executive power by undermining or eliminating institutions — including the press, agencies, lawyers, and universities — that can check the administration’s political and other narratives. Destroying the credibility of media and non-media fact-checkers and harassing them in civil suits, often through exorbitant demands for damages, serves these larger goals. 

Regardless of their merit, Trump’s lawsuits force defendants to consider whether it is worth publishing truthful information or opinions that reflect poorly on him or his administration. The ordinary demands and pressures of civil litigation are even more pronounced when the plaintiff is the president of the United States. Judges may be reluctant to dismiss frivolous claims as a result of Trump’s status, and juries in some jurisdictions may be inclined to side with the president against his critics.

Past as prelude: The Sullivan story and its current importance

Using civil lawsuits as a cudgel against the media and other critics is an abusive practice that threatens to chill communication of opinions and facts. Although unprecedented for a presidential candidate or president, weaponizing defamation and other civil lawsuits to suppress criticism and chill reporting is not a new tactic. 

During the Civil Rights Era, local southern officials relied on pro-plaintiff standards to censor and intimidate both media outlets and civil rights activists. Through frequent lawsuits, local and state officials sought to control the narrative about racial segregation. 

Recognizing the chilling effect of this litigation tactic, in its 1964 decision New York Times Co. v. Sullivan the Supreme Court adopted a demanding standard of proof applicable to public officials who sued for allegedly defamatory statements about the conduct of their official duties. Under that precedent, public officials must show the statements were made with “actual malice,” i.e., that the defendant knew they were false when published or published them with reckless disregard for their truth. The Court later extended the actual malice standard to suits brought by public figures, including those like Trump who have gained extensive public notoriety.

Sullivan was a direct response to early SLAPPs, which were filed to censor local and national reporting about the extent and effects of racial segregation. As the Court recognized, because no double jeopardy limit applied in the civil context, defamation lawsuits could be even more chilling to a free press than the threat of criminal prosecution. 

Indeed, as Anthony Lewis observed in his book about the Sullivan case, by 1964, southern officials had brought $300 million in libel claims against the press for truthfully reporting on civil rights abuses. Sullivan’s protective standard — which the president favors eliminating — has been an effective shield for defendants sued by Trump. Without it, media and non-media defendants may face sizable damage awards for publishing even truthful criticism of Trump or the administration.

To be sure, the press does not always act responsibly. Media outlets and reporters can be held liable for knowingly or recklessly publishing false statements about public officials or figures. At the same time, as anti-SLAPP legislation shows, expensive lawsuits and the threat of civil damages can undermine the ability of the press and others to share vitally important information with the public. Trump and his lawyers have upped the ante with consumer fraud and other claims, which must still be rebutted even if frivolous. 

In the hands of political officials, including presidents, abusive civil lawsuits can significantly undermine efforts to check power and educate the public. 

Troubling successes — and possible responses

Trump has had some recent success in his civil lawsuits. For example, ABC News settled a defamation lawsuit, agreeing to donate $15 million to Trump’s presidential library and issue an apology for George Stephanopolous’s comments about the civil sexual assault verdict (which the trial judge held was “substantially true” in another Trump defamation lawsuit). CBS and “60 Minutes” are reportedly also considering a settlement, even though legal experts agree the lawsuit is based on a frivolous theory that a news network can be held liable for how it edits interviews. 

Meanwhile, Trump has already extracted (if that is the right word) hefty settlements from Meta and X, for seemingly defensible decisions they made to de-platform or restrict Trump based on violations of their terms of service. A judge had dismissed Trump’s action against Twitter (now X), which was based on the First Amendment. 

Of course, as law students in my classes know, the First Amendment constrains state action, not the private actions of social media platforms.

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There are many reasons a defendant might want to settle a civil lawsuit. One reason being to avoid a protracted and costly court proceeding, to avoid discovery, or to avoid the risk of a jury verdict. However, settlement of SLAPPs raise concerns about press obeisance and lack of independence. Rather than defend core First Amendment press prerogatives and functions, large media corporations with regulatory or other business before the Trump administration may be making balance sheet decisions. 

As some commentators have suggested, social and media legacy companies may be settling meritless cases to grease the regulatory skids for pending mergers and other potential benefits from the Trump administration. Some have even suggested that some of these settlements may constitute a novel form of political corruption. Thus, one commentator referred to settling frivolous civil lawsuits brought by Trump as “a novel pathway to engage in political bribery.” (Of course, even if the practice fits that description, the administration can simply refuse to enforce political corruption laws against settling defendants.)

There are several means of combatting the weaponization of civil lawsuits. The most direct and obvious is to defend against these lawsuits and offer a robust First Amendment defense. As history shows, weaponizing civil lawsuits has dangerous implications for the freedoms of the press and speech. Trump’s aggressive resort to defamation and other civil lawsuits also highlights the importance of retaining Sullivan’s press-protective standard. Defendants ought to put up substantial and sustained resistance to lawsuit weaponization.

Anti-SLAPP statutes can also provide a deterrent. A federal anti-SLAPP law would make this important protection more widely available. Thus far, Trump has not been much deterred by anti-SLAPP liability. However, making such protections available regardless of jurisdiction would provide all defendants an opportunity to dismiss harassing defamation claims.

There are also actions judges can take to punish and deter abusive civil lawsuits. Judges have the power to dismiss baseless or frivolous claims on their own, and to sanction lawyers who file them. Some commentators have urged judges to refuse to approve media settlements of frivolous claims brought by Trump, on the grounds that they are the product of duress or fraud, or are otherwise against public policy.

Like agency employees, private employers, lawyers, universities, and others who have been subject to executive actions meant to punish or chill expression, media and non-media defendants currently face a critical choice: capitulate or fight. 

For the sake of the First Amendment, let us hope the targets of strategic civil lawsuits defend them vigorously.

2024-2025 SCOTUS term: Free expression and related cases

Cases decided 

• Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
• Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
• TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Review granted

• Chiles v. Salazar
• Free Speech Coalition, Inc. v. Paxton (argued Jan. 15)
• TikTok Inc. and ByteDance Ltd v. Garland (argued Jan. 10)
• Firebaugh v. Garland (argued Jan. 10)

Pending petitions 

• L.M. v. Town of Middleborough
• Sullivan v. Texas Ethics Commission
• National Republican Senatorial Committee v. Federal Election Commission
• 360 Virtual Drone Services LLC v. Ritter

Petitions denied

• Speech First, Inc. v. Whitten
• Coalition Life v. City of Carbondale
• Turco v. City of Englewood, New Jersey
• R.J. Reynolds Tobacco Co. v. FDA
• Smith v. Stillie
• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu
• Henderson v. Texas
• Nassif v. United States

Last scheduled FAN

FAN 461: “Intimidating abridgments and political stunts”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.