The Brilliance of Trump’s New Campaign Suing Fake News

Every American to the right of Ocasio knows that the mainstream media lie and lie. Even much of truth and facts can be honestly, inadvertently tilted. Other facts can be deliberately slanted, though technically true. That is why Kellyanne Conway was right when she uttered her much-mocked assertion that there are “alternate facts.” Certainly, facts are facts, and they do not care about your feelings. But facts indeed can be slanted into alternate facts. Figures don’t lie, but liars can figure. And the media often go beyond reporting facts into concocting outright lies. Think of the Charlottesville lie. It will never stop being spread, even though the video exists all over YouTube, even though left-wing Snopes declared it a lie. Yet, Biden lied, saying that the Charlottesville press conference was why he ran for president. Such a liar, from his first gulp of mother’s milk to his future final injection of morphine. Then Harris repeated the same debunked lie in her presidential debate with Trump. The moderators, who kept fact-checking Trump throughout the debate, never fact-checked Harris, even though Charlottesville is the most famous lie since Gamal Abdul Nasser announced in June 1967 that Egypt had just wiped out the Israeli air force. So, even “fact-checking” often is rooted in and based on lies.

Nothing is more frustrating than to have one’s character or identity lied about. We all have experienced that, perhaps in elementary or high school, perhaps at work, perhaps in a volunteer-based non-profit association. Wherever people exist with an opportunity to ascend on some status or financial ladder, someone may undercut the competition by lying. We all have encountered this. In almost all our cases, we still are standing and thriving despite it all. However, some have been destroyed, and even a few have committed suicide.

The problem we face in America, in part, is that our legal system creates impediments to receiving a fair remedy when victimized by defamation. For most of us, the cost of litigating a defamation action is just too much — $100,000 or more in my decades-long experience in the field of complex civil litigation. Even if one can afford the legal fees, it is pointless to sue if the villain lacks the resources to pay a judgment. Moreover, for public figures — celebrities, athletes, political personalities — extra barriers exist to obtaining justice for defamation.

Back in the 1960s, the U.S. Supreme Court understandably made it harder for public figures to collect on defamation claims, even when they have been slandered (by spoken word) or libeled (by written word). The Court felt that celebrities cast themselves voluntarily into the public eye, and such criticism is part of what they bargained for when they sought that life and its concomitant rewards. Furthermore, the Court reasoned that celebrities have easier access to public media themselves, so are reasonably situated to rebut the lies and defend their reputations in the free marketplace. At the same time, the Court legitimately was concerned that multi-million-dollar defamation judgments could put offending media out of business — bankrupt them — and that would dampen freedom of speech and the press. Media would self-censor, restricting the publication of true matters of public concern out of fear they would be sued and bankrupted by a hostile jury, even if they reported accurately. For example, right-wing Alabama judges crushed the left-wing New York Times in a libel action brought in the Alabama courts by a popular Alabama public official. The left-leaning U.S. Supreme Court fashioned heightened standards to prevent chilling free speech and the press merely by leveraging courts unfairly to censor honest reporting or by excessively punishing sincere mistakes. Some reporting mistakes really are honest; that is why the media often publish corrections.

The only way a public figure can win a defamation suit is by proving that the defamer (1) absolutely knew or absolutely should have known the report was a lie, or (2) published with reckless disregard for the truth. “Reckless disregard for the truth” means the publisher entertained serious doubts about the truth of what he was about to publish but chose to publish the falsehood anyway instead of checking the facts. On the other hand, if the reporter truly believed the false fact actually was true, then the reporter is not required to have double-checked before publishing it. That situation is not regarded as “reckless disregard,” and the defamer is safe from punishment in that case. That is American law.

I wrote a book about an incident in which Time Magazine libeled Israel’s then-defense minister, Ariel Sharon, about a controversial incident that occurred amid the 1982 war in Lebanon. (The same actors as today. Those wars in Gaza, Lebanon, Judea and Samaria, and Iran will never ever end until America, for once and for all, allows Israel to wipe out the terrorists and their supporters, instead of ceasing fire and allowing the cancers to grow back.) Sharon sued Time for lying, and the jury unanimously found for Sharon: Time Magazine had lied about and libeled him, a vote of 12-0. Nevertheless, under American law, Sharon did not collect a dime because the jury also found that the mistake had been published by a misunderstanding between an editor and the anti-Israel “journalist” who wrote the lies. A “Misunderstanding” — so not “reckless disregard for the truth,” so no damages. Consequently, Sharon sued again, bringing the exact same legal action in Israel, and this time he collected a fortune. His reputation was restored, and he soon was elected prime minister of Israel.

In America, no person in our time has been lied about and defamed more than Donald Trump. (Honorable Mention: Justice Brett Kavanaugh. Third Runner Up: Nick Sandmann.) Trump’s predicament is that he is hand-tied by the accumulated Supreme Court holdings on defamation law. For each lie published about him, the media have the same defense because they truly suffer from DTS, Trump Derangement Syndrome: “But we really thought he called the Charlottesville Nazis ‘fine people.’ We were wrong? Oops. We really thought he called for an insurrection. We were wrong? Oops. We really thought he was as anti-Semitic as Hitler. We were wrong? Oops. We really thought he colluded with Putin. We were wrong? Oops.

So Trump has been hand-tied legally. The guy has been unable to get justice on this issue — until now.

I wish I had direct access to Trump. I don’t. I have published so many ideas for him over these past nine years. I know for a fact that some of them have gotten through, like the time he read one of my The American Spectator articles to a crowded audience (starts at 4:35), but not enough. Finally, however, it seems that one of my best ideas finally — finally — has reached him, albeit because someone else finally thought of it, too. The brilliant idea:

1. Do not sue under a claim of defamation. The law is rigged against you, a public figure in a public forum facing a mass media that universally is infected with (hence their defense of) DTS.
2. Instead, sue under the “Unfair Trade Practices and Business Fraud” consumer laws. Trump doesn’t need the money; he just needs justice. The “Unfair Trade Practices” laws are not governed by the defamation restrictions. Just allege that the media — newspapers (online and hard copy), television, and others — are entities that transact commercially with consumers and advertisers by marketing products that are sold as truthful transmissions of honest facts. Argue that they are receiving millions by fraudulently purveying the equivalent of lemons to automobile purchasers. By publishing lies to consumers and advertisers paying for the truth, without warning them that the “facts” are doctored or at least are parodies not to be taken seriously, the perpetrators profit unlawfully by engaging in business fraud. (There might even be an angle for a RICO action that would treble the damages, but it is worth testing the new theory more simply before getting too greedy.)
3. The genius of it: Trump does not have to win; he only needs to meet the minimum legal standard of stating a reasonable cause of action that, if successful, can be remedied. That is, even if he loses, he can easily afford the attorneys’ bills. (The courts properly dismiss nonsense lawsuits that comprise malicious prosecution of the law, but they will not prejudge seemingly hopeless cases based on novel theories that at least have some aspect of “OK, maybe, let the guy have his day in court. Who knows? There’s the gravamen of a claim here.”) Since Trump can afford to lose anyway, here is what he gets — besides, maybe, winning: Discovery.
4. Once a judge allows a case to survive the initial federal 12(b)(6) motion to dismiss the case, or the similar state demurrer, the meat of the proceedings now unfolds: Discovery — interrogatories, evidentiary demands to inspect everything; computer records, documents, emails, texts, handwritten notes, diaries, phone messages, and so much more; requests for admission; and my favorite — depositions. As Discovery unfolds, all kinds of garbage comes out. I did these for more than a decade, and every case produced its gold nuggets and archaeological finds. In a federal antitrust action, while we were ferreting to prove whether some corporations had colluded on something, we found a stack of receipts exposing that one of the corporate heads was a prodigious consumer of high-priced prostitution. It had nothing to do with the case, but he settled before that stuff came out. In another, we found vicious emails back and forth from one office staffer to another about how much they hated the CEO. Their months of emails laid out a point-by-point map of all his defalcations, indiscretions, and portrayed what an overall creep he was. Guess the rest: The two secretaries were fired, and the CEO settled for millions so that the discovery never would come out. And remember the mess the Fox News litigation caused? The Tucker Carlson behind-the-scenes tensions prompted them to fire him when it became public, and everyone lost. The whole thing was a nightmare.
5. This is why Trump finally should pursue justice this way. Sue Pollster Selzer and the Des Moines Register for Unfair Business Practices. Sue CBS over their edited “Sixty Minutes” Kamala Harris interview — for Unfair Business Practices. I would not sue the TV stations that ran biased debates because those, although vicious, do not seem actionable. Trump could have walked out or called them on it more effectively on stage, and the “cats and dogs” thing was not his best moment. (It would have been safer if he had said they were eating hot dogs smeared with catsup.) On Charlottesville, I would start suing on the original First Amendment defamation laws because, now that Snopes has debunked the lie, and so many media articles criticized the ABC debate “moderators” for letting that lie go unchecked, a fair argument finally can be made that no one who repeats the Charlottesville lie reasonably can have entertained serious doubts as to its veracity. I likewise would sue, sounding in defamation, any outlet that further accuses him of anti-Semitism; it is time, once and for all, for him to crush them on that.

For the past two years, the Democrats have bashed Trump with hateful lawfare. They subjected him to two vacuous impeachments, perpetrated a phony “Jan. 6 commission” to defame him publicly by allowing only one side’s witnesses, possibly spoliating evidence and tampering with witnesses, and more. It is time — right now — for the Empire to Fight Back. That is not “revenge.” It is not “getting even.” It is not “payback.”

It simply is … about time.

READ MORE from Dov Fischer:

If Only We Had More Daniel Pennys!

In Praise of G-d and of His Agent for Change — Kamala Harris

Why Trump Needed to Name Some Outliers to His Team

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