A look at the legal tactics Trump is using against media outlets

Geoff Bennett:

We're going to shift our focus now to Donald Trump following through on his threats of legal action against the news media.

Earlier this week, as we have reported, ABC News agreed to pay $15 million to settle a defamation lawsuit brought by Mr. Trump, and the president-elect announced more was to come.

Donald Trump, Former President of the United States (R) and Current U.S. President-Elect: I feel I have to do this. I shouldn't really be the one to do it. It should have been the Justice Department or somebody else, but I have to do it.

It costs a lot of money to do it, but we have to straighten out the press. Our press is very corrupt.

Geoff Bennett:

Following those comments, his legal team filed a lawsuit against Iowa pollster Ann Selzer and The Des Moines Register for a poll released three days before the election showing Vice President Kamala Harris leading by three points. Mr. Trump won the state by 13. His lawsuit called the poll election-interfering fiction.

Clay Calvert is a professor emeritus of law at the University of Florida and a nonresident senior fellow at the American Enterprise Institute. Thanks for being with us.

Clay Calvert, American Enterprise Institute:

Thanks for having me. I appreciate it.

Geoff Bennett:

So, let's start with this Iowa lawsuit, because unlike the now-settled ABC News lawsuit, this is not about defamation, but about an accusation of consumer fraud under Iowa law.

Help us understand this fairly novel approach.

Clay Calvert:

Sure.

It's definitely a novel approach. Typically, we would think of a defamation lawsuit filed by somebody who's been slandered, defamed. So what Trump is using here, it's a novel technique. He's using consumer fraud, consumer protection statutes that target unfair and deceptive business practices.

And so what he essentially is suggesting that Ann Selzer's polls here were fraudulently conducted, they were designed to harm his campaign. So it's a totally different use. Typically, we think of consumer protection laws as about products that you would buy at the store or the supermarket.

Now we're talking about information and news. So, regardless of his theory here, the First Amendment is certainly going to come into play as a constitutional overlay that would lend protection to The Des Moines Register, who is one of the defendants in this case.

Geoff Bennett:

And The Des Moines Register responded to the lawsuit in a statement, part of which reads this way.

It says:

"We stand by our reporting on the matter and believe this lawsuit is without merit."

And Ann Selzer spoke about this accusation before the lawsuit was filed in an interview with Iowa PBS. Here she is.

J. Ann Selzer, Selzer & Company, Inc.: The idea that I intentionally set up to deliver this response, when I have never done that before — I have had plenty of opportunities to do it. It's not my ethic.

But to suggest without a single shred of evidence that I was in cahoots with somebody, I was being paid by somebody, it's all just kind of — it's hard to pay too much attention to it, except that they're accusing me of a crime.

Geoff Bennett:

In your view, is winning in court the real goal of this suit or something else to play here?

Clay Calvert:

It's absolutely not to win in court. The real goal here is to chill the press, to have the news media engage in what we call self-censorship, to pull back their stories.

So, instead of playing a watchdog role, as typically we think of the fourth estate plane when it comes to the government, what I think Trump is really trying to do is make the press be a lapdog, turn it into something that's not going to bark at him when he takes office again in 2025.

So, really, the goal here is to chill the press, to try to scare them off from criticizing him. That's the larger purpose. It's what we would think of sometimes as a strategic lawsuit against public participation or a SLAPP suit, strategic lawsuit against public participation.

The whole purpose here is designed to chill the press from participating in criticizing him.

Geoff Bennett:

Does the ABC News settlement, does it embolden more of these types of lawsuits? Or is it potentially a way to protect press freedom because the thinking is had it gone all the way up to the Supreme Court, the conservative majority on the court might have overturned the long existing protections that were established under The New York Times v. Sullivan case back from 1964?

Clay Calvert:

Well, certainly, Justice Thomas has an appetite, as does Justice Gorsuch, for overruling the actual malice standard.

So you wouldn't want to tee up a case to give the justices a crack at overruling the actual malice standard. I think one of the more interesting things with the Disney-ABC settlement is particularly that. You have a news division at ABC, but you also have this overlord by Walt Disney, an entertainment company.

And so there's a real tension there when a news organization is controlled by a company that has other interests in the entertainment industry. And so I think that friction is very important. So a number of the officials at ABC News certainly didn't want that settlement to happen. But on the other hand, they're dictated and controlled by Disney.

Geoff Bennett:

At the moment, Donald Trump is still a private citizen, but in a couple of months' time, he will be president again. He will have control of the full weight and power of the Department of Justice. How should news organizations prepare?

Clay Calvert:

I think they are preparing now. I'm a member of several different organizations where the media attorneys are members of that. And I know that they certainly are thinking about these issues.

I think one of the other things we need to think about is the FCC, the Federal Communications Commission, and Brendan Carr taking the chair position there, because Trump has threatened to revoke the licenses of stations that he believes engage in fake news, deceptive news commentary.

So we have got frontal attacks in terms of lawsuits, but also I'd watch out for the FCC and its actions in the future in terms of broadcast journalism.

Geoff Bennett:

Clay Calvert, nonresident senior fellow at the American Enterprise Institute, thanks for your time this evening. We appreciate it.

Clay Calvert:

Thank you for having me.