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by Carson Holloway


As readers of this space know, former President Donald J. Trump is suing CNN for defamation. Trump claims in his suit that CNN defamed him by repeatedly likening him to Hitler and, in particular, by claiming that his complaints about the integrity of the 2020 election are nothing but a “Big Lie,” such as was used by Hitler to win and maintain power.

For its part, CNN claimed in a motion for dismissal filed over the holidays that, even if it said everything Trump alleges, he still has no case. According to CNN, its comparisons of Trump to Hitler were mere “opinion” and “rhetorical hyperbole,” not the kind of factually false derogatory claims for which one can sue for defamation.

Now Trump’s lawyers have filed their response to CNN’s motion to dismiss. Their argument is noteworthy not only for the way in which they try to keep CNN on the hook by appealing to the prevailing legal standards of defamation, but also for the way in which they seek to challenge those standards themselves as being too favorable to media organizations that promote inflammatory coverage of public figures. It seems, in other words, that the Trump legal team wants the federal courts — and ultimately the Supreme Court — to revisit New York Times v. Sullivan (1964), the fountainhead of modern American libel law and the source of the legal standards that make it so hard for public figures to sue successfully for defamation.

Again, CNN claims that its numerous Trump–Hitler comparisons are all just “opinion” and “hyperbole” and are, therefore, a privileged form of speech for which one cannot be sued for defamation. After all, the law of defamation is intended to protect people (much less public figures) not from negative opinion but from false claims of fact that are damaging to one’s reputation. Arguing within this existing legal framework, Trump’s lawyers respond that it is strange, and indeed unpersuasive, for CNN to claim that these remarks are mere opinion. After all, CNN bills itself as a source of “news” — as is stated in its name, Cable News Network. Moreover, CNN markets itself as “the most trusted name in news.” Viewed in this context, perhaps it would be reasonable for the court to treat CNN’s assertions that Trump is the same as Hitler as defamatory factual claims. Along the way, Trump’s lawyers observe that, for decades after World War II, American courts held that it was per se defamation to call somebody Hitler.

More fundamentally, and more daringly, Trump’s lawyers also invite the courts to revisit New York Times v. Sullivan and thus to reconsider the legal standards imposed by that ruling. In truth, Trump would have a very hard time prevailing in his suit even if he could convince the court to treat CNN’s comparisons of him to Hitler as fact and not just opinion. The reason for this difficulty arises from New York Times and subsequent cases, in which the Supreme Court held that public figures (like Trump) who claim to have been defamed must show not only that they were the victims of false and damaging statements but also that the statements were made with “actual malice” — that is, that those who made the statements knew they were false or were recklessly indifferent as to their truth or falsity. In practice, it has proven all but impossible to meet such a standard, and successful suits brought by public figures are very rare.

As a candidate and as president, Trump complained about the New York Times standard in his rough and ready way. He said that we need to “open up” our libel laws so as to make it easier to sue the purveyors of false and defamatory material. Now his lawyers are following that call up with their submission to the court.

According to Trump’s legal team, New York Times v. Sullivan should be reconsidered because the doctrine of the case is not accomplishing what it had intended. In 1964, the Supreme Court wanted to make it hard for public figures to sue for libel because they thought the high bar for such suits was needed to protect the First Amendment and the vigorous public debate necessary for self-government. They feared that if it were too easy to sue for libel, public figures might use sympathetic state courts to bring abusive libel suits intended to stifle public discussion of important issues.

According to Trump’s filing, however, whatever the court intended in 1964, decades of experience now show that the “actual malice” standard actually undermines the First Amendment and democratic self-government. By giving big “news” organizations near impunity to defame public figures, that standard permits an often-partisan media to pollute the public discourse with lies — a situation that is hardly conducive to responsible and rational self-government on the part of voters.

This argument deserves serious consideration. (Indeed, I have made a version of it myself and have further contended that New York Times v. Sullivan deserves to be reversed because it is not really based on the original understanding of the First Amendment.) Getting the Supreme Court to reverse any long-standing precedent is, admittedly, a long shot. Nevertheless, it is no longer possible to pretend that Trump’s complaints about the “actual malice” standard are a fringe opinion. As his lawyers observe, numerous respected American jurists have expressed skepticism about what the court did in New York Times: Justice Clarence Thomas, Justice Byron White, Justice Potter Stewart, Justice Neil Gorsuch, and Judge Laurence Silberman.

Will the courts heed Trump’s invitation to reconsider New York Times v. Sullivan? Stay tuned! If they do, it will mark a first step toward restoring the kind of spirited — but also rational and decent — public discourse necessary for a well-functioning democracy.

– – –

Carson Holloway is Washington Fellow in the Claremont Institute’s Center for the American Way of Life.
Photo “Donald Trump Stops to Talk to the Media” by Trump White House Archived.




Appeared at and reprinted from The American Spectator

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Tags: cnn donald j trump new york times v sullivan defamation according to trump’s trump’s lawyers to treat cnn’s the first amendment treat cnn’s to trump’s complaints the supreme court public discourse new york times v self government for defamation comparisons the statements to reconsider him to hitler for which one actual malice defamation necessary false the american the american the kind his lawyers because intended

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Hollywood stars & New York hipsters are flocking to our UK seaside town… but we’re being priced out – it’s not fair

RESIDENTS of a seaside town have told how they are being priced out because Hollywood directors and New York hipsters are flocking to their town.

Margate, Kent has recently been heavily featured on a number of 'cool' lists, including being listed as having one of the trendiest neighbourhoods in the UK by Time Out.

5Margate is being flooded with 'cool' hipstersCredit: Gary Stone 5Sam Mendes, Olivia Colman and Toby Jones following a special screening of “Empire of Light” at Dreamland, MargateCredit: Getty 5Former wildman Pete Doherty is another famous residentCredit: Frank Leppard/Triangle News 5Tracey Emin switched on the neon lights at Dreamland on May 26, 2017Credit: Getty 5Local shop worker John Horler says the newcomers are good for the townCredit: Gary Stone

And the reputation of the town, with its sandy beaches and classic architecture, has been boosted by the new Sam Mendes film, Empire of Light, starring Olivia Colman.

The recent buzz surrounding the town has attracted artists from around the world.

World famous Tracey Emin moved back to the costal hub in 2016 after growing up there.

Meanwhile, Pete Doherty spent much of his musical career in Margate - even opening a studio and hotel in the town.

Robert Diament, director of the Carl Freedman Gallery alongside actor Russel Tovey, told the Guardian that Margate was going "international."

He added: "Artists are moving from Brooklyn to be here."

Some have even gone as far as to dub it the UK 'Ibiza', according to Tatler.

But now locals are divided over the town's new ‘hipster’ status.

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John Horler, 36, moved to Margate eight years ago from South London and works part-time at the skateboard shop, Skatepark in the town.

He said: "Over the years I've been here I've really seen it change.

"There's a lot more opportunities now and there is a really strong, thriving community.

"During the winter it can be a little quiet but it really picks up in the summer.

"It is definitely becoming international. I don't know too many Americans specifically but lots of artists are attracted to the town.

"The galleries are amazing and there is so much to do here.

"When the skatepark is built, which is expected next year, it will bring even more people down.

"I'd definitely recommend artists and people from round the world who are looking for a place to be more creative to come here."

Simon Hutchinson co-owns the Big Shot coffee shop located in the old part of the town.

He moved to Margate three years ago from nearby Canterbury and is also enthusiastic about the development in the town.

The 35-year-old said: "I think it's an amazing town and there's been lots of progress over the past few years.

"When I was younger Margate had a pretty bad reputation and there was little attractive about it, even for local residents.

"But now there's so much going. The food in this town is incredible as it has such a wide range of quality restaurants.

"We've been open for just over a year now and we seem to be doing alright. It's hard to gauge anywhere right now, what with the economy and the hangover from covid, but Margate definitely seems to be a town on the up.

"It doesn't surprise me that more and more people are coming to the town, even Americans."

But not all the local residents feel so positive about the town.

Robyn Evans, who was born and raised in Margate, was not so sure that the recent hype was justified.

The 27-year-old special needs teaching assistant said: "We hear all these things about Margate being the up and coming place but for locals it's not the reality.

"Having the filming here was really cool, and we loved the lights, but nothing permanent stayed here. Not keeping the lights was a bad decision.

"The rents are getting too expensive and local people are being priced out of the town. Most the places are bought and turned into AirBNBs. It's not sustainable at all.

"More Londoners and artists coming here is all well and good but unless they spend their money locally it doesn't really do us a lot of good."

Ben Olive, 30, agreed that Margate locals rarely see the benefit of artists making it their new home.

The Home Office worker said: "It's true that we've seen an increase in investment into some parts of the old town but the majority of the town has actively declined recently - especially post pandemic.

"Most of the shops in the centre are shut and the money just doesn't stay in the town. Local people don't really get anything out of it.

"It was great having Empire of Light filmed here but nothing stayed. The council didn't even keep the lights which were donated to them."

Ryan Smith, who works at Margate Book Shop, was able to see both sides of the argument.

The Scottish writer and musician moved to the town from London three years ago after growing tired of the hectic nature of city life.

The 38-year-old said that the town has offered him and his partner a substantially better standard of living.

But he added that he is sympathetic towards locals who feel that the money is not staying in the town.

He said: "I love it here. There's such a sense of community and the town has such a unique character that it's no surprise that international artists are attracted to it.

"For people who are tired of city life it offers such a different experience. There's a lot of culture round here, with the galleries and the live music scene, and it's a beautiful area.

"It is a very appealing spot for artists and I can see why more and more people are coming here... though it was happening long before Sam Mendes' new film.

"I definitely understand why local people feel a bit resentful towards some people moving in. Lots of people just buy houses in the town but don't spend any of there money here, pricing regular people out.

"But then again, when I used to manage a local pub, there would be so many regulars who would say the town has transformed over the last decade of so thanks to people coming in.

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"Really if you're coming here you need to make an effort to become involved with the local community and contribute to the town's economy.

"I am hopeful for the town's future because I think it has a wonderful spirit about it which should protect it against the effects of gentrification."

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