The Donald Trump vengeance tour is on the road and the media is in its crosshairs. “It should have been the justice department or somebody else, but I have to do it,” the president-elect intoned on Monday. “It costs a lot of money to do it, but we have to straighten out the press.”
“Our press is very corrupt,” he continued. “Almost as corrupt as our elections.”
Also on Monday, a 15-year-old student in Wisconsin killed two people, injured six others, and took her own life with a 9mm pistol. The US supreme court, however, accords firearms the same constitutional protections as speech and worship. In Trumpworld, guns and the second amendment rock, the press not so much.
Not missing a beat, the president-elect put his money where his mouth is. Hours after the press conference and shooting, he filed a lawsuit against the Des Moines Register newspaper, its parent Gannett, and the political pollster J Ann Selzer in connection with a pre-election poll that showed Kamala Harris leading in Iowa by three points, 47-44. On election day, Trump actually triumphed there by double digits.
His complaint alleges that the defendants, in publishing the results of Selzer’s poll, violated Iowa’s consumer fraud laws and committed election interference. Not necessarily known for accuracy, Trump, through his lawyers, embarked on another fantasy.
“The November 5 election was a monumental victory for President Trump in both the electoral college and the popular vote, an overwhelming mandate for his America First principles,” the pleadings declared.
Not exactly.
By the numbers, Trump’s actual popular vote plurality stands at 1.48%. He also received less than half of all votes cast, because of third-party and write-in votes. Joe Biden, Barack Obama and Bill Clinton all won by larger margins. Then again, this is the same Trump who persistently insinuated Obama was foreign-born.
Beyond that, Trump stands liable to E Jean Carroll for more than $85m after he lost two civil defamation and sexual abuse cases in Manhattan federal court.
But his message remains clear: bend the knee or else.
On that score, portions of the media have already internalized Trump’s expectations. Days after the election, “Morning Joe” Scarborough and Mika Brzezinski, his wife and co-host, raced down to Mar-a-Lago to interview Trump.
For the record, in 2017 Trump branded Scarborough as a “psycho” and lambasted Brzezinski as “low-IQ Crazy Mika” while deriding her for “bleeding badly from a face-lift”. Time and fear heal all wounds, apparently.
Then there is ABC News. The network recently agreed to pay $15m to settle a Trump defamation suit. Last spring George Stephanopoulos, its Sunday talkshow host, repeatedly said Trump was liable for rape when a jury had actually found him liable for abuse.
But there is more to it than that. In August 2023, Trump lost his counter-claim for defamation against Carroll. Dismissing the Trump counter-claim, a judge in New York, Lewis A Kaplan, said that when Carroll repeated her allegation that Trump raped her, her words were “substantially true”. Kaplan also set out in detail why it may be said that Trump raped Carroll.
In May, Stephanopoulos said he would not be “cowed out of doing my job”. This weekend, however, he and ABC expressed collective “regret” over his choice of words. However you look at it, the network caved. With ABC having folded under pressure, expect the president-elect to be emboldened.
Trump has also filed a $10bn action against CBS for purportedly doctoring its 60 Minutes interview with Kamala Harris. Pending in a federal court in Texas, that lawsuit too is predicated upon alleged violation of a state consumer fraud law. Earlier this month, CBS moved to dismiss the case.
For Trump and his allies, however, overturning New York Times v Sullivan, the US supreme court’s unanimous 1964 landmark ruling on press freedoms, is the ultimate prize. In their view, public figures facing off against the press should be aided by a lower burden of proof. They should no longer be required to demonstrate “actual malice”. The fact that more than half a century has passed since the decision means little.
Justice Clarence Thomas has branded Sullivan and its progeny as “policy-driven decisions masquerading as constitutional law”. Justice Neil Gorsuch more subtly contends that the emergence of cable television, the internet, and the 24/7 news cycle warrant re-examination of the “actual malice” standard.
In his words: “In 1964, the court may have seen the actual malice standard as necessary ‘to ensure that dissenting or critical voices are not crowded out of public debate’. But if that justification had force in a world with comparatively few platforms for speech, it’s less obvious what force it has in a world in which everyone carries a soapbox in their hands.”
All this brings us back to Trump’s attack on the Des Moines Register. What’s sauce for the goose has a way of becoming sauce for the gander. In late September, just weeks before the 2024 election, news surfaced that Rasmussen Reports, a polling operation, shared its results with the senior members of the Trump campaign.
One email also revealed “close collaboration between the Trump campaign, Rasmussen, and the Heartland Institute”, a 501(c)3 non-profit, according to American Muckrakers and the New Republic. This raises potential legal issues and headaches. Turnabout is fair play. Trump may have inadvertently opened the door for attacks on his friends.
Lloyd Green is an attorney in New York and served in the US Department of Justice from 1990 to 1992