By Noreen Marcus, FloridaBulldog.org
President Trump’s go-to grievance, “the Russia Russia Russia hoax,” is agitating Florida courts, where state judges tend to let him revise the story of the 2016 presidential election and federal judges tend to resist.
According to Trump’s preferred version of events, he won fair and square in 2016 with no help from Vladimir Putin. Anyone who dares note that Russia contributed to Trump’s victory, or who fact-checks one of his false assertions, risks having to pay huge money damages.
On Sept. 15, for instance, Trump filed a $15-billion defamation suit against The New York Times in Tampa federal court. The lawsuit targets articles and a book that claim the Trump family’s fortune was built on fraud. A court loss for The Times could bankrupt one of the biggest watchdogs on the Trump beat.
Four days later, U.S. District Judge Steven Merryday, an appointee of Republican President George H.W. Bush, dismissed the “decidedly improper and impermissible” complaint. However, the judge will allow Trump’s lawyers to shorten and refile their 85-page screed, so the case continues.
The many civil actions Trump has filed, including a pending libel law case against the Pulitzer Prize Board, support his obvious strategy: choke off defiant media voices and grab the power to dictate “the first rough draft of history,” as journalism is called.
Another case Trump is litigating in federal court alleges former presidential nominee Hillary Clinton, the Democratic National Committee and their allies conspired to steal the 2016 election. West Palm Beach U.S. District Judge Donald Middlebrooks blasted the “frivolous” civil racketeering claim; Trump has appealed to the 11th Circuit in Atlanta.
Robert Jarvis, a law professor at Nova Southeastern University in Davie, said he sees similarities between Trump v. Clinton and the Pulitzer libel law case. Both rely on misinformation about the 2016 election.
“Those two cases are about rewriting history, sanitizing history and making Russia’s interference in our 2016 election disappear from our history books,” Jarvis said. “They’re cut from exactly the same cloth.”
Settlements with media outlets such as Disney’s ABC News ($15 million) and Paramount’s CBS News and “60 Minutes” ($16 million) pay dividends by shaping the national conversation about the president. The deals serve as warnings; they intimidate the media Trump hasn’t gotten around to suing yet, observers say.
“I think Trump has abused civil lawsuits to bully the media,” Timothy Zick, a professor at William & Mary Law School in Williamsburg, VA, told Florida Bulldog.
So far he’s largely failed, according to Zick. “Trump has a very poor track record in civil lawsuits, particularly those claiming defamation. In fact, he nearly always loses – sometimes very badly,” Zick wrote.
In Trump’s case against Clinton and the DNC, unless the 11th Circuit intervenes, Trump and his former lawyer Alina Habba will have to pay almost $1 million in sanctions for pursuing a frivolous lawsuit. Habba has since become the controversial Acting U.S. Attorney for New Jersey.
DEFENDING THE PULITZERS
After the Pulitzer Prize Board honored coverage of “Russiagate,” or, Russian meddling in the 2016 election, Trump started demanding that the board rescind its national reporting prizes to The Washington Post and The New York Times.
The board had the stories reviewed by two independent parties, then refused to take back the awards. Trump responded by filing a libel lawsuit in a state court near his Palm Beach residence, Mar-a-Lago.
The lawsuit claims that a 2022 statement from the Pulitzer board defending the newspapers’ Russiagate coverage was itself a defamatory assault on Trump’s reputation.
The board said the independent reviewers agreed “no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged” after the awards. Therefore, “The 2018 Pulitzer Prizes in National Reporting stand.”
An early trial court win inspired Trump to tweet gleefully: “BREAKING NEWS! … esteemed Florida Circuit Court Judge, Robert L. Pegg, issued a Powerful Decision totally and completely DENYING the Pulitzer Prize Board’s desperate attempt to dismiss my ironclad Defamation Lawsuit against them for awarding the once respected Pulitzer Prizes to Fake News Stories about the Russia, Russia, Russia Hoax by The Failing New York Times and The Washington Compost…” Pegg is a senior judge based in Vero Beach.
On Aug. 26 the Florida Supreme Court let stand the Fourth District Court of Appeal decision approving Pegg’s ruling. All three courts accepted Trump’s Pulitzer libel claim at face value. Now the case is back in Okeechobee County Circuit Court, where Trump’s lawyers can go fishing for evidence.
In February, Fourth DCA Judge Edward Artau released a separate opinion in the case including this bombshell: “as the President asserts, ‘the Russia Collusion Hoax was dead, at least until Defendants [the Pulitzer Prize Board] attempted to resurrect it’ by conspiring to publish a defamatory statement falsely implying that the President colluded with the Russians.”
Artau was stretching to comment on the case’s merits when he didn’t have to. And blatantly siding with the president seemed to pay off for him.
In June Trump nominated Artau to fill a vacancy on the Southern District of Florida federal court. He received Senate confirmation Sept. 8 by a vote of 50 to 43.
Meanwhile the Pulitzer case has matured into a vehicle for harassing board members by going after their internal emails and texts. Media and media-adjacent stars including New Yorker editor David Remnick, New York Times columnist Gail Collins and historian Anne Applebaum are among the 20 defendants.
WHY SUE IN FLORIDA?
The hyper-litigious president sues everywhere, but Florida is often his venue of choice. That makes sense to Nova’s Jarvis.
“It’s a natural place for Trump to be attempting to rewrite American libel law,” he said.
Jarvis offered three reasons: Florida is a laboratory for testing far-right legal theories en route to the U.S. Supreme Court; Trump’s home base is in Florida, and “he’s got a governor who’s supportive. Ron DeSantis has called for the same sort of changes in libel law that Trump has been pushing,” Jarvis said.
Their ultimate goal is to gut Times v. Sullivan, the 61-year-old U.S. Supreme Court ruling that’s the main obstacle to defeating the media in First Amendment cases.
Because of this decision, a public figure like Trump must prove the publisher of an alleged libel or slander acted with “actual malice,” meaning they knew or strongly suspected their information was false but went with it anyway.
The legal theory Trump’s lawyers are workshopping in Florida is that the Sullivan decision is outmoded; yet also, more than 200 years ago the Framers weren’t thinking about protecting the media the way Sullivan requires.
Judge Artau offered his thoughts on Sullivan in his far-reaching February concurrence. He suggested the Supreme Court “revisit” whether the Sullivan rule “should continue to be the law of the land despite historical evidence showing it does not comport with the original understanding of the First Amendment.”
Supreme Court Justices Clarence Thomas and Neil Gorsuch have signaled they’re open to reviewing the Sullivan doctrine, but two of nine justices can’t get anything done by themselves. Four must agree to accept a case; to date, the court has passed on hearing any case that directly challenges Sullivan.
“You’ll need a change in the court’s composition before you get a vote to hear any of these cases,” Jarvis said. “It’s not the cases that are the problem for Trump, it’s that the court doesn’t want to open up this issue.”
Zick said, “I would also think the court might be wary of having more Trump-related litigation on its docket at this time.” The justices already are grappling with a constant flow of appeals from lower courts that test the limits of presidential power.
“It could be that the court is wiser than the people bringing these lawsuits,” Jarvis said. “If you make it easier to sue for the far right, you also help the far left.”
“I could see where the other seven justices are saying, ‘We want no part of this because the courts will be flooded as everybody sues everybody,’ ” he said.
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