TRUMP

v.

CABLE NEWS NETWORK, INC.

THIS CAUSE is before the Court on Defendant Cable News Network, Inc.’s (“CNN”) Motion to Dismiss (DE ). The motion is fully briefed and ripe for review. For the reasons discussed below, the Motion to Dismiss is granted.

I. INTRODUCTION

Plaintiff, Donald J. Trump (“Trump”) is a former president of the United States of America and a citizen of Florida. (DE ¶ 1, 5). Defendant CNN is a news media corporation organized and incorporated under the laws of Delaware with its principal place of business in Georgia. (DE ). Trump has sued CNN for defamation,¹ alleging diversity of citizenship. (DE ¶ 4). 28 U.S.C. § 1332. Trump alleges that CNN defamed him by making statements comparing him to Hitler and the Nazi regime. Trump’s Complaint (DE ) specifies five instances of alleged defamation. Id. ¶ 28.a-e: a. On January 25, 2021, CNN published an article written by Ruth Ben-Ghiat, a “frequent contributor to CNN Opinion,” entitled

Trump, a leader of authoritarian intentions and tendencies, had disadvantages with respect to the foreign autocrats he so admires. He had no state media, like China's Xi Jinping. He could not rule by decree, like Hungary's Viktor Orbán. He had to govern and run for reelection in an open society with a relatively robust free press. Moreover, although he succeeded in making journalists into hate objects for many of his followers, he could not revoke or destroy the First Amendment.

So Trump took a different tack, unleashing a barrage of disinformation common in authoritarian states but without precedent in the history of the American presidency. He told more than 30,000 documented lies in public (30,573 was The Washington Post's final tally), on Twitter, at rallies and in interviews. If taken as an average, it would come out to 21 lies per day over his four-year term.

b. On July 5, 2021, CNN published an article written by Chris Cillizza, CNN Editor-at-Large, entitled “Donald Trump just accidentally told the truth about his disinformation strategy.” In this article, CNN’s Editor-at-Large likens the Plaintiff to Nazi propagandist Joseph Goebbels: “One can only hope that Trump was unaware that his quote was a near-replication of this infamous line from Nazi Joseph Goebbels: ‘If you tell a lie big enough and keep repeating it, people will eventually come to believe it.’”

c. On September 15, 2021, CNN published an article written by Chris Cillizza, CNN Editor-at-Large, entitled, “Donald Trump’s Mental Health becomes an issue again.” In this article, CNN Editor-at-Large wrote that President Trump “continued to push the Big Lie that the election was somehow stolen despite there being zero actual evidence to back up that belief.” Id. (emphasis added).

d. On January 16, 2022, CNN aired a television show entitled “State of the Union” that included host Jake Tapper making the following comments:

e. On February 11, 2022, CNN published an article written by Chris Cillizza, CNN Editor-at-Large, entitled, “Here’s the terrible reality: Trump’s election lie is on the march” with a link entitled, “New poll suggests Trump 2020 election lie is working.” In the article, Cillizza claims:

This is the insidiousness of Trump’s big lie. It’s like an earworm – you may hate the song but you just keep finding yourself humming it in the shower. Trump has created a constant low-level buzz within the American electorate that something is wrong with the way we conduct elections. That he has no proof doesn’t seem to matter; by sheer repetition, his false claims are wheedling their way into the consciousness of the public.

Complaint (DE ¶ 28) (footnotes omitted) (emphases in original). Trump alleges that the use of the phrase “the Big Lie” constitutes defamation per se because it “create[s] a false and incendiary association between the Plaintiff and Hitler.” Id. ¶ 39. He argues that the use of the phrase “the Big Lie” is defamatory because it “has incited readers and viewers to hate, contempt, distrust, ridicule, and even fear the Plaintiff causing injury to the Plaintiff, the Plaintiff’s reputation, and the Plaintiff’s political career.” Id. ¶ 64. As a result, Trump claims that viewers and readers “understood that Plaintiff would be Hitler-like in any future political role.” Id. ¶ 41. who complained about election integrity. Id. ¶¶ 31-34. He argues that CNN’s disparate treatment of public figures is evidence of malice and “evidence that Defendant is not reporting the news, but rather propagating its political views.” Id. ¶ 35. Trump seeks damages in excess of $75,000, punitive damages in the amount of $475 million, pre-and post-judgment interest, taxable costs, and trial by jury. CNN moves to dismiss the Complaint with prejudice.

II. LEGAL STANDARDS

A. Motion to Dismiss

To survive a motion to dismiss, “factual allegations must be enough to raise a right to relief above the speculative level” and must be sufficient “to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca-Cola Co., 578 F. 3d 1252, 1261 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Authority, 566 U.S. 449 (2012). In considering a Rule 12(b)(6) motion to dismiss, the court’s review is generally “limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc., 555 F. 3d

949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty., 285 F. 3d 1334, 1337 (11th Cir. 2002)). The court must review the complaint in the light most favorable to the plaintiff, and it must generally accept the plaintiff’s well-pleaded facts as true. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). But “[c]onclusory allegations, unwarranted Jackson v. BellSouth Telecommunications, 372 F. 3d 1250, 1262 (11th Cir. 2004) (citation omitted); see also Iqbal, 129 S. Ct. at 1949 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”).

B. Defamation

The parties agree that Florida law applies to this dispute. In Florida, a defamation claim has “five elements: (1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory.” Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). A claim of defamation requires a false statement of fact. Byrd v. Hustler

Magazine, Inc., 433 So. 2d 593, 595 (Fla. 4th DCA 1983) (“A false statement of fact is the sine qua non for recovery in a defamation action”). Statements of pure opinion are not actionable. Zambrano v. Devanesan, 484 So. 2d 603, 606 (Fla. 4th DCA 1986). “The distinction between fact and opinion is not always easy to perceive.” Id. “Thus, the law recognizes that some comments may be pure expressions of opinion whereas others may be mixed expressions of opinion.” Id. Whether a challenged statement is one of fact or opinion is a question of law to be decided by the court. Turner v. Wells, 879 F. 3d 1254, 1262 (11th Cir. 2018). “When applying state defamation law to public figures, the First Amendment imposes additional limitations.” Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc.,⁶ F. 4th 1247, 1252 (11th Cir. 2021). The statement in dispute “must be ‘sufficiently factual to be susceptible of being proved true or false.’” Id. (quoting Milkovich v. Lorain J. Co., 497 U.S.¹, 21 (1990)). Next, “the statement must be actually false.” Id. Finally, the false or with reckless disregard of whether it was false or not.” Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). Thus, even if the statement is made with bad or evil intent, it is not actionable under the law if it is pure opinion.³

III. DISCUSSION

This case involves political speech of the highest order. The First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for public office.” McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 191-92 (2014) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). As a panel of the Eleventh Circuit recently stated:

The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. Accordingly, speech on public issues occupies the highest rung on the hierarchy of First Amendment values and is entitled to special protection. Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social or other concern to the community, or when it is a subject of general interest and of value and concern to the public.

Acknowledging that CNN acted with political enmity does not save this case; the Complaint alleges no false statements of fact. Trump complains that CNN described his election challenges as “the Big Lie.” Trump argues that “the Big Lie” is a phrase attributed to Joseph Goebbels and that CNN’s use of the phrase wrongly links Trump with the Hitler regime in the public eye. This is a stacking of inferences that cannot support a finding of falsehood. See Church of Scientology of California v. Cazares, 638 F. 2d 1272, 1288 (5th Cir. 1981) abrogated on other grounds, Blanchard v. Bergeron, 489 U.S. 87 (1989).6 Church of Scientology is similar to the present case. There, a city official made numerous public statements opposing the church’s presence in the city. In one he stated:

“Scientologists are bringing to the city a helter-skelter world and philosophy.” The church sued, stating that “the term ‘helter-skelter’ had, by reason of a best-selling book and

Ashleigh Banfield and Paul Steinhauser (see (DE ¶ 24), the Court finds Nazi references in the political discourse (made by whichever “side”) to be odious and repugnant. But bad rhetoric is not defamation when it does not include false statements of fact. CNN’s use of the phrase “the Big Lie” in connection with Trump’s election challenges does not give rise to a plausible inference that Trump advocates the persecution and genocide of Jews or any other group of people. No reasonable viewer could (or should) plausibly make that reference. See Miami Herald Pub. Co. v. Ane, 423 So. 2d 376, 389 (Fla. 3rd DCA 1982) (quoting Walsh v. Miami Herald Pub. Co., 80 So. 2d 669, 671 (Fla. 1955)) (“The language of the publication declared upon should not be interpreted by the extremes but should be ‘construed as the common mind would ordinarily understand it.’”). And even if the phrase “the Big Lie” could somehow plausibly compel a reasonable viewer to perceive Trump as “Hitler-like,” or “authoritarian”, such terms are not statements of fact subject to defamation laws “because of the tremendous Buckley v. Littell, 539 F. 2d 882, 893 (2d Cir. 1976).7 A connotation or implication is only actionable if it is “provably false.” Coral Ridge Ministries Media, Inc.,⁶ F. 4th at 1252 (citing Milkovich v. Lorain Journal Co., 497 U.S.¹, 19-20 (1990) (“a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations like the present, where a media defendant is involved”)). Being “Hitler-like” is not a verifiable statement of fact that would support a defamation claim. Buckley, 539 F. 2d at 893.8 Trump argues that a motion to dismiss is not the proper avenue for evaluating the defamatory nature of CNN’s comments. The Court disagrees. “Whether the defendant’s statements constitute defamation … is a question of law for the court to determine.”

Turner, 879 F. 3d at 1269 (affirming dismissal of defamation case at motion to dismiss stage) (citing Brown v. Tallahassee Democrat, Inc., 440 So. 2d 588, 590 (Fla. 1st DCA 1983)). “Whether the publication is defamatory becomes an issue of fact for the jury only where the publication is susceptible of two reasonable interpretations, one of which is defamatory.” Id. CNN’s statements while repugnant, were not, as a matter of law, defamatory. The case will, therefore, be dismissed with prejudice.9 Accordingly, it is hereby

RAAG 5

UNITED STATES DISTRICT JUDGE

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