Background: President Donald Trump speaks during a campaign rally at Cecil Airport, Thursday, Sept. 24, 2020, in Jacksonville, Fla. (AP Photo/Evan Vucci). Inset: he CNN logo is displayed at the entrance to the CNN Center in Atlanta on Wednesday, Feb. 2, 2022. (AP Photo/Ron Harris, File)
Donald Trump is trying to resurrect a lawsuit against CNN on appeal following his defeat in a lower court when he tried and failed to claim that the network defamed him when it used the “Hitlerian” term the “Big Lie” in reference to his pervasive and debunked claims of voter fraud in the 2020 election.
As Law&Crime previously reported, a judge dismissed Trump’s 2022 defamation case against CNN in July. This was “erroneous,” Trump’s appeal in the Eleventh Circuit entered on March 29 argues. He first filed a notice to appeal the ruling last December, according to a review of the appellate docket in Florida.
The court’s error, the former president’s full appellate brief outlines, was due to the lower court’s reliance on just five of 60 statements made by the network that Trump says unfairly connected him to “ongoing false claims of knowing lies and misleading Nazi linkage throughout the defendant’s programming.”
This was not CNN’s opinion or the network using hyperbole, the nascent appeal argues, but the reporting was “false factual proposition” at worst, or a “mixed opinion implying a defamatory fact,” at best. His attorneys claim that the lower court further “abused its discretion” by denying Trump’s request for a rehearing and his motion to amend his complaint last year. The rehearing request was denied in December.
But when U.S. District Judge Anuraag “Raag” Singhal — appointed by Trump in 2019 — dismissed the case with prejudice, he did signal that had Trump amended his complaint earlier, he may have ruled differently. Particularly, Singhal pointed to precedent in New York Times Co. v. Sullivan, a long-standing case decided by the U.S. Supreme Court that found a speaker must act with “reckless disregard” of the truth when making a statement in order to defame someone. As Law&Crime reported last October, this is a precedent that conservative Supreme Court Justice Clarence Thomas has called to be overturned.
Trump says that since January 2021, CNN has referred to him “at least 7,700 times as purveying the “Big Lie” in questioning improprieties in the 2020 Presidential election” and that this “notorious” term is how Hitler defamed the Jewish people and “furthered crimes against humanity,” the appeal states.
The term emerged in Hitler’s book Mein Kampf and the dictator used it to say that Jews in Vienna slandered German military prowess in World War I as a means of sabotage. Ultimately, it would be Hitler and his Nazi regime that would use this very tactic to smear Jews and attempt to rewrite history by blaming this for Germans’ defeat while Nazi propaganda minister Joseph Goebbels simultaneously perpetuated the notion that it was Jews who profited from this scheme.
“By stating as a fact that plaintiff adopted Hitlerian and Nazi tactics of lies and oppression” instead of “exercising his right to assert a political viewpoint regarding an election,” the network intended to falsely link him with “lying repressive Nazi propaganda,” Trump argues.
In recent years, the “Big Lie” phrasing reemerged in reporting in the wake of Trump’s incessant claims of fraud in the 2020 presidential election despite overwhelming evidence, testimony and other guidance and official analyses the Trump White House received to the contrary.
When Singhal ruled last year that the defamation case wouldn’t stand up on its merits, the judge wrote:
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.
CNN’s commentary, Singhal found, was “opinion, not factually false statements” and though the judge dismissed the case, he still bristled at the network’s phrasing and called it “repugnant” but “not, as a matter of law, defamatory.” He could not find the connection Trump had suggested: that the network was conflating him with genocide or its advocacy.
Remarkably, Trump eventually went on to use the “Big Lie” phrase himself to describe his defeat the polls in 2020. In May 2021, Voice of America reported that Trump said that “The Fraudulent Presidential Election of 2020 will be, from this day forth, known as THE BIG LIE!”
Historically, he has repeatedly referred to the 2020 election this way, and he has falsely suggested that masses of dead voters or “fake” votes in key battleground states were cast and helped rig election outcome against him. Some of the claims he and his allies like Rudy Giuliani championed about ballot stuffing were not only debunked but have led to massive defamation lawsuits of their own, at least in the case of Giuliani. The former New York City mayor currently in bankruptcy as he tries to stave off paying two poll workers in Georgia $148 million for defaming them and just last week he begged a judge to let him keep his home in condo so he could keep podcasting.
Trump says CNN has “derided his honesty and trustworthiness” by stating that he “knowingly and intentionally lied in every comment about 2020 election integrity issues” and “aligned him with arguably the most evil, murderous political figure and regime in history” by asserting that he was purposefully looking to violate people’s individual rights.
“The district court’s structural lapse in failing to consider the entirety of the defamatory statements alleged in the complaint, reflecting the staggering breadth and scope of CNN’s ongoing, malicious, and defamatory linkage — both in broadcast statements and imagery — of plaintiff with Hitler and Nazism amounted to clear error and manifest injustice warranting reconsideration,” wrote attorneys Richard Klugh and Alejandro Brito.
An attorney for CNN did not immediately respond to a request for comment, nor did an attorney for the former president.
The appeal comes as Trump is fighting indictments in multiple venues and is still filing motions weekly to dismiss them. It also comes as he has been hemorrhaging money.
When he first sued CNN for these claims, he demanded $475 million. That amount is roughly the same sum he was ordered to pay the State of New York following a court’s ruling that he committed fraud for years in Manhattan by falsely inflating the valuations of his properties to reap in sweetheart deals from insurance companies. After weeks of claiming it would be impossible for him to secure even a portion of the debt owed to New York, he secured bond on Monday, as Law&Crime reported, of $175 million. It will allow him to appeal the judgment but if he loses on appeal, Trump will end up right where he started.
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