By Alex Hill

President Trump’s disdain for “fake news” outlets continues to receive media attention.[i]  In his latest act, Trump’s campaign filed defamation suits against CNN, the Washington Post, and the New York Times over opinion articles that discussed the campaign’s involvement with Russian interference in Presidential elections.[ii]  These complaints point to Robert Mueller’s report[iii] on Russian interference in the 2016 election in order to plead facts supporting that the defendant media outlets knew the assertions in the opinion pieces were false when they published them.[iv]

This Article first provides the legal standard for defamation suits brought against public officials and figures under New York Times Co. v. Sullivan.[v]  Next, the Article addresses the Supreme Court’s holding on defamation cases regarding pieces asserted as “opinion” from Milkovich v. Lorain Journal Co.[vi]  Lastly, the Article analyzes the articles published and the asserted defamatory statements from the complaints in light of the two pieces of case law.

New York Times established that “actual malice” must be shown in a defamation case over statements about public officials by clear and convincing evidence.

In 1964, the Supreme Court reviewed a case where the Commissioner of Public Affairs, L.B. Sullivan, of Montgomery, Alabama sued the New York Times for defamation.[vii]  In this case, the Court reviewed the application of Alabama’s “libel per se” rule regarding public officials that states when a statement tends to injure a person in their public office, the defendant must establish that the statement is true.[viii]  However, upon review, the Supreme Court recognized the importance of freedom to publicly criticize public officials and their conduct when such conduct is true or the author reasonably believes it to be true.[ix]  The Court then equated such a per se rule as an equivalent to “self-censorship”.[x]  As a result, the Supreme Court held that the plaintiff bears the burden of proof to show falsity, and, in the case of public officials, the plaintiff must show “actual malice,” in that the author knew the statement to be false or that the author recklessly disregarded the truth.[xi]  In these instances, the burden of proof the Supreme Court set for actual malice is clear and convincing evidence.[xii

Milkovich established that an “opinion” does not per se protect statements about issues of public interest.

The Supreme Court revisited the issue of defamation in 1990 in Milkovich.[xiii]  There, the defendant-news outlet alleged in an article that a local high school wrestling coach committed perjury.[xiv]  Once the plaintiff-wrestling coach sued the defendant for its comments, the defendant claimed the news article was an opinion piece, and should analyzed under the theory that opinions cannot be proven false and thus, cannot be subject to defamation suits.[xv]  However, the Supreme Court recognized that statements within opinion pieces may still allege false facts that can injure a person’s reputation.[xvi]  Rather than allowing a simple dichotomization of fact and opinion, the specific statements should be addressed for their defamatory value.[xvii]

Statements in the campaign’s complaints appear to allege factual assertions, but the campaign likely cannot prove actual malice for any of the defamation claims.

In the Trump campaign’s complaint against the New York Times, the allegedly defamatory statements describe factual assertions that President Trump had quid-pro-quo deals established with Russia for information regarding Hillary Clinton during the 2016 election.[xviii]  Rather than these statements constituting opinions, they appear to allege that President Trump factually entered into this agreement with Russian officials.  Therefore, the issue lies in whether the campaign can prove by clear and convincing evidence that this assertion was made with knowledge that this was false, or with reckless disregard for the truth to meet the actual malice standard.

In the complaint, the campaign argues that the reckless disregard for the truth arises out of Robert Mueller’s report on Russian election interference.[xix]  Trump’s campaign alleges that the report concludes that there was no collusion between the campaign and Russia.[xx]  However, Robert Mueller’s report does indicate that contacts between the campaign and Russian officials existed, and that there appeared mutual interest between the parties.[xxi]  The report did not come to the conclusion that no collusion occurred, only that there was not evidence enough to support criminal charges.[xxii]  So, under the actual malice standard, the report itself does not appear to be sufficient to show by clear and convincing evidence that the author recklessly disregarded the truth.

  In the CNN complaint, the campaign alleges that a statement that the Trump campaign is still considering foreign interference in the 2020 election is defamatory with no facts supporting it.[xxiii]  This statement too appears to make factual assertions regarding decisions made by the Trump campaign.  Yet, the article itself actually does cite facts that support its claim that it derived from actions of Rudy Giuliani and Jared Kushner.[xxiv]  Additionally, the burden of proving knowledge of the statement’s falsity or reckless disregard of it lies on the Trump campaign.  As such, it appears the Trump campaign will likely fail to meet the high burden requirement in this claim, too.

Lastly, in the Washington Post complaint, statements from two separate articles are alleged as defamatory.[xxv]  The first statement is from an article published on June 13, 2019 that alleges that Special Counsel for the issue Robert Mueller concluded that, “. . . Trump and/or his campaign eagerly encouraged, tried to conspire with, and happily profited off of those efforts.”[xxvi]  This statement asserts factual actions taken by President Trump’s campaign and is subject to defamation liability.  Again, the campaign asserts this is not true because the report concludes there was no collusion between the campaign and Russia.[xxvii]  Again, the report only concludes that there is not enough evidence to sustain a criminal charge of conspiracy.[xxviii]  However, it does lay out the contacts and interactions between the campaign and Russia that could support such an assertion.[xxix]  So, it appears it would be hard for Trump’s campaign to meet their actual malice burden without further factual support.

The statement from the second article was published on June 20, 2019 and asserts that the Trump campaign has invited Russia and North Korea to interfere with the 2020 election.[xxx]  This also asserts that Trump’s campaign has invited these countries to interfere.  The complaint’s main focus lies in the “invitation” language and focuses on North Korean involvement in the 2020 election.[xxxi]  With regard to the Russia portion, the complaint again points to Robert Mueller’s report to show reckless disregard of falsity or knowledge of falsity, which would fall along the same line of analysis as the other two cases.[xxxii]  However, the campaign argues that there is an invitation for North Korea to interfere meets actual malice simply because there is no evidence or reporting of such.[xxxiii]  This type of self-checking and censoring is exactly the type of scenario the Supreme Court intended to avoid in New York Times v. Sullivan.[xxxiv]  Trump’s campaign needs to show through clear and convincing evidence that the author recklessly disregarded evidence showing the statement is false or knew it was false, rather than just pointing to a lack of support.  Therefore, based on the complaint, the Trump campaign will likely fail in this claim as well.

While all three of the complaints filed by the Trump campaign do correctly assert that statements of fact were published by these news outlets, all three claims appear woefully inadequate in alleging how actual malice is met in regards to the falsity of the statements.  As a result, the campaign is likely to face difficulty in pursuing these claims as defamatory against President Trump.

[i] See e.g., Joseph A. Wulfsohn, Trump Knocks ‘Fake News’ CNN after Jim Acosta Pressed POTUS on His Handling of Coronavirus, Fox News (Mar. 11, 2020),; Opinion, The Global Reach of Trump’s ‘Fake News’ Outrage, Wash. Post (Nov. 19, 2019),

[ii] Complaint at 1, Donald J. Trump for President, Inc. v. New York Times Co., No. 152099 (N.Y. Sup. Ct. Feb. 26, 2020) [hereinafter NY Times]; Complaint at 2, Donald J. Trump for President, Inc. v. WP Co., No. 1:20-cv-00626 (D.D.C. Mar. 3, 2020) [hereinafter Wash. Post]; Complaint at 1, Donald J. Trump for President, Inc. v. CNN Broad., Inc., No. 1:20-cv-01045 (N.D.G.A. Mar. 6, 2020) [hereinafter CNN].

[iii] Robert S. Mueller, Report on the Investigation into Russian Interference in the 2016 Presidential Election (Mar. 2019).

[iv] NY Times, supra note 2, at 3; Wash. Post, supra note 2, at 2; CNN, supra note 2, at 4–5.

[v] 376 U.S. 254 (1964).

[vi] 497 U.S. 1 (1990).

[vii] Sullivan, 376 U.S. at 256.

[viii] Id. at 267.

[ix] Id. at 279.

[x] Id.

[xi] Id. at 279–80.

[xii] Id. at 285–86.

[xiii] Milkovich, 497 U.S. at 3.

[xiv] Id.

[xv] Id.

[xvi] Id. at 18–19.

[xvii] Id. at 19.

[xviii] NY Times, supra note 2, at 3.

[xix] Id. at 3.

[xx] Id.

[xxi] Mueller, supra note 3, at 5–7.

[xxii] Id. at 9.

[xxiii] CNN, supra note 2, at 4–5.

[xxiv] Larry Noble, Soliciting Dirt on Your Opponents from a Foreign Government Is a Crime. Mueller Should Have Charged Trump Campaign Officials with It, CNN (June 13, 2019),

[xxv] Wash. Post, supra note 2, at 4–5.

[xxvi] Id. at 4; Greg Sargent, Trump Just Invited Another Russian Attack. Mitch McConnell Is Making One More Likely., Wash. Post (June 13, 2019),

[xxvii] Wash. Post, supra note 2, at 2.

[xxviii] Mueller, supra note 3, at 9.

[xxix] Id. at 5–7.

[xxx] Paul Waldman, Trump: I Can Win Reelection with Just My Base, Wash. Post (June 20, 2019),

[xxxi] Wash. Post, supra note 2, at 2.

[xxxii] Id.

[xxxiii] Id.

[xxxiv] Sullivan, 376 U.S. at 279.