On Oct. 18, 2019, The Hollywood Reporter and Reuters reported that a letter sent on behalf of President Donald Trump to CNN President and CEO Jeffrey Zucker and CNN General Counsel David Vigilante had accused the news outlet of violating the Lanham Act of 1946, 15 U.S.C. § 1051 et seq., a federal statute that governs trademarks and also includes provisions against false advertising. The letter contended that CNN Broadcasting, Inc., CNN Productions, Inc., and CNN Interactive, Inc. (collectively “CNN”) violated the law by misrepresenting President Trump, and threatened legal action unless CNN agreed to an “appropriate resolution of the matter,” including a “substantial payment of damages.” Several observers criticized the letter, contending that if President Trump filed such a lawsuit, he would face a significant First Amendment defense and would be unlikely to win.
The letter, which was dated Oct. 16, 2019, began by stating that attorney Charles Harder was representing President Trump and Donald Trump, Jr., his son. Harder, of Harder LLP, is best known for his victorious lawsuit against media gossip website Gawker on behalf of former professional wrestler Hulk Hogan, as well as his more recent legal attacks on technology news website TechDirt and women’s website Jezebel. (For more information on Harder and his lawsuits against media outlets, see Book About the Trump Administration’s White House Raises Ethical and Legal Questions in “The Ethics of Covering President Donald Trump” in the Winter/Spring 2018 issue of the Silha Bulletin, “Attorney Charles Harder Continues Attacks on News Websites by Filing Defamation Suits” in the Fall 2017 issue, “Gawker Shuts Down After Losing Its Initial Appeal of $140 Million Judgment in Privacy Case” in the Summer 2016 issue, and “Gawker Faces $140 Million Judgment after Losing Privacy Case to Hulk Hogan” in the Winter/Spring 2016 issue.)
Second, the letter cited several ways in which CNN represented itself to be “truly fair and balanced,” including through statements found on its website like “excellence in journalism,” “most trusted source for news and information,” and “commitment to the truth and to facts.” The letter also discussed different elements of the Society for Professional Journalists’ (SPJ) Code of Ethics, including that journalists should “[t]ake special care not to misrepresent or oversimplify inpromoting, previewing or summarizing a story.”
Third, the letter included video footage released weeks earlier by political activist James O’Keefe, who is known for publishing controversial hidden camera videos on his website, Project Veritas. The videos purportedly depicted CNN employees discussing “tak[ing] down President Trump” and a “personal vendetta” against the president and his administration, among other comments by various CNN employees. The letter contended that the footage “indicates that [CNN’s] reporting relating to President Trump is contrary to [CNN’s] own mission and the aforementioned [SPJ] Code of Ethics.”
On Oct. 15, 2019, Newsweek reported that Fox News host Jesse Watters had defended CNN after the initial release of the videos. “I’m not blown away by the content of it,” Watters said during an October 15 discussion about the leak on Fox News’ “The Five.” “I think that the president of CNN saying, ‘We gotta follow impeachment, we gotta follow hard’ is not breaking news. Or, that he said, ‘Let’s call out Lindsey Graham,’ or that he said ‘Fox News is destructive.’ He’s said that out in the open many, many times.”
This was not the first instance O’Keefe posted undercover videos depicting CNN employees. In 2017, O’Keefe released a series of videos targeting the news outlet, one of which purported to show a CNN producer calling the coverage of President Trump’s possible collusion with Russia during the 2016 presidential election “mostly bullshit” and all about “ratings.” In another video, CNN contributor and host of “Messy Truth” Van Jones is heard calling the possible collusion of the Trump administration with Russia during the 2016 presidential campaign “a nothingburger,” according to The Hill on June 30, 2017.
Following the posting of the 2017 videos, several media organizations and scholars criticized O’Keefe’s undercover recording methods and called into question the legitimacy of the videos. Such arguments are a common criticism of Project Veritas, including following the publishing of similar types of videos targeting The Washington Post, democratic politicians, and others. (For more information on the 2017 CNN videos, see Political Operatives Target Hidden Camera Videographer in Civil Lawsuit in “Controversial Undercover Video Makers Face Legal Action and Ethical Concerns” in the Summer 2017 issue of the Silha Bulletin. For more information on O’Keefe, see “Undercover Video Maker James O’Keefe Continues Attacks on the News Media, Faces Setbacks in Some Legal Disputes” in the Winter/Spring 2018 issue of the Silha Bulletin.)
Fourth, the letter argued that “[n]ever in the history of this country has a President been the subject of such a sustained barrage of unfair, unfounded, unethical and unlawful attacks by so-called ‘mainstream’ news, as the current situation.”
Fifth, the letter argued that CNN’s actions were in violation of the Lanham Act “by constituting misrepresentations to the public, to your advertisers, and others.” The letter added that President Trump and his son “intend[ed] to file legal action against [CNN], to seek compensatory damages, treble damages, punitive damages, injunctive relief, reimbursement of legal costs, and all other available legal and equitable remedies, to the maximum extent permitted by law.”
Finally, the letter stated that Zucker and Vigilante should contact Harder “to discuss an appropriate resolution of this matter, which would include a substantial payment of damages, as well as all other appropriate measures that are necessary to fully address the magnitude of the situation.” The full letter is available online at: https://www.scribd.com/document/430936962/CNN-Re-Pres-Trump-Trump-Campaign-10-16-19#fullscreen&from_embed.
On Oct. 18, 2019, CNN told The Hollywood Reporter, “This is nothing more than a desperate PR stunt and doesn’t merit a response.”
Hollywood Reporter journalist Eriq Gardner noted in his Oct. 18, 2019 story that if President Trump formally filed a lawsuit against CNN, it would “likely bring a fulsome First Amendment defense.” Gardner also argued that it was unlikely that President Trump could win such a suit. He wrote, “Given how courts have treated speech and the media throughout American history, Trump’s odds would seem enormously long.”
Gardner noted that the Lanham Act “does have a provision against false advertising.” However, he argued that it was “dubious whether Trump can demonstrate the type of commercial injury that would confer him with standing to pursue such a case over what may also be argued to be opinions (e.g. what constitutes bias).” Furthermore, Gardner argued that it was unlikely President Trump would even file such a lawsuit. “[W]hile Trump was known for being litigious during his business days, he’s also become infamous for being a paper tiger, repeatedly threatening litigation against media outlets without following up,” Gardner wrote.
Rebecca Tushnet, an expert in false advertising law at Harvard Law School, agreed, telling Reuters on October 18 that there was “no merit” to the letter’s legal arguments and that she doubted a lawsuit would ever be filed.
In an October 18 tweet, Gibson, Dunn & Crutcher LLP attorney Theodore J. Boutrous called the letter “absolutely ridiculous.” He added, “No serious lawyer would ever think of sending such a frivolous letter making such a baseless threat.” (Boutrous delivered the 33rd Annual Silha Lecture, titled “The First Amendment and #MeToo” on Oct. 17, 2018. For more on the lecture, see “33rd Annual Silha Lecture Addresses the Free Speech Implications of the #MeToo Movement” in the Fall 2018 issue of the Silha Bulletin.)
As the Bulletin went to press, President Trump had not filed a lawsuit against CNN.
Reuters noted that President Trump had a history of “lash[ing] out” at CNN, including calling the network and other news organizations “fake news” and “the enemy of the people.” In November 2018, the White House attempted to revoke CNN reporter Jim Acosta’s press credential, ultimately leading the U.S. District Court for the District of Columbia to order the White House to immediately return his hard pass. In July 2018, the administration “banned” CNN reporter Kaitlan Collins from a press availability with President Trump and Jean-Claude Juncker, the president of the European Commission, who were meeting in the Rose Garden of the White House. And, in July 2017, President Trump tweeted a video in which he was portrayed wrestling and punching a man whose face was superimposed with the CNN logo, prompting criticism from observers.
(For more information on the Trump administration’s actions against Acosta and Collins, see President Trump Calls CNN Reporter “Rude, Terrible Person,” Revokes His Press Credentials; Federal Judge Requires Trump Administration Reinstate Credentials in “President Trump Continues Anti-Press Rhetoric and Actions” in the Fall 2018 issue of the Silha Bulletin. For more information on the 2017 video, see Trump Tweets Video Depicting Himself Wrestling “CNN”; CNN’s Decision to Withhold Reddit User’s Name Prompts Ethical Concerns in “Journalists Face Physical Restraints and Arrests; Trump Video Raises Further Concerns about Violence Against the Media” in the Summer 2017 issue of the Silha Bulletin.)
— Scott Memmel
Silha Bulletin Editor