Although presidents have been subjected to harsh and even vicious criticisms throughout American history, never until this week has a sitting president filed a defamation suit. President Donald Trump’s lawsuit against the Wall Street Journal (and his subsequent decision to remove the news organization from the press pool on an upcoming presidential trip to Scotland) must be understood as yet another of his attempts to intimidate the media. Other frivolous Trump suits against the media have nonetheless settled in his favor. Although it is obviously too soon to know the fate of this legal action, the chances of Trump prevailing seem slim, and I hope the Wall Street Journal will fight back.
Trump filed his lawsuit in response to an article published in the Wall Street Journal on Thursday, July 17. The article described a letter apparently signed by Trump that was part of a collection given to Jeffrey Epstein for his fiftieth birthday.
The Wall Street Journal article said: “The letter bearing Trump’s name, which was reviewed by the Journal, is bawdy—like others in the album. It contains several lines of typewritten text framed by the outline of a naked woman, which appears to be hand-drawn with a heavy marker. A pair of small arcs denotes the woman’s breasts, and the future president’s signature is a squiggly ‘Donald’ below her waist, mimicking pubic hair. The letter concludes: ‘Happy Birthday — and may every day be another wonderful secret.’”
The Wall Street Journal article includes a denial from Trump that he wrote the letter or drew the picture. “This is not me. This is a fake thing. It’s a fake Wall Street Journal story.”
On Monday, July 21, President Trump filed a $10 billion lawsuit against the Wall Street Journal. Trump’s complaint alleges that the defendants “possessed information and had access to information that showed their statements were false,” and that they published “with knowledge of the falsity of the statements, and/or with reckless disregard of their truth or falsity.”
These are the allegations necessary for a defamation suit by a public official. But proving them is enormously difficult as the Supreme Court, I believe rightly, has made it very difficult for public officials to prevail in a defamation action.
The key Supreme Court case, New York Times v. Sullivan (1964), involved a defamation suit against the New York Times for an advertisement criticizing how Montgomery, Alabama police had treated civil rights demonstrators. The ad contained minor factual inaccuracies, such as saying that the demonstrators sang “My Country ’Tis of Thee,” but they actually sang the national anthem. It said Dr. Martin Luther King, Jr. had been arrested seven times, but it really was only four. The jury found the ad to be libelous and awarded a $500,000 verdict against the New York Times.
The Supreme Court held that the liability violated the First Amendment. The Court explained that the case was considered “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The Court said that criticism of government and government officials is at the core of speech protected by the First Amendment. The fact that some of the statements were false was not sufficient to deny the speech of constitutional protection. False “statement is inevitable in free debate and [it] must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”
The Court thus greatly limited the ability of public officials to recover for defamation. It concluded that the First Amendment prevents a “public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
Thus, the law is long established that a public official can recover for defamation only by proving with clear and convincing evidence that the statements were false and that the speaker knew they were false or had a subjective awareness of probable falsity. This will be a daunting, if not impossible, burden for President Trump. He must conclusively prove that he did not send the card to Epstein. But even if he proves that, he must show that the Wall Street Journal knew he did not do it and published the story anyway.
Public officials rarely successfully sue for defamation because of the heavy burden they must meet in such litigation. And here, there is an added risk to President Trump in going forward with the suit. The lawyers for the Wall Street Journal will want to engage in extensive discovery about the relationship between Trump and Epstein.
My inclination therefore is to regard Trump’s suit as just a public relations effort to deflect a news story he did not like. Trump frequently has filed defamation suits in the past, which consistently have failed, including against CNN, The New York Times and The Washington Post. But since his reelection, media companies have repeatedly settled with him even in litigation where Trump seemed to have had little chance of prevailing in court.
For example, in December 2024, it was announced that ABC News would settle a defamation suit brought by Trump by giving $15 million to the Trump presidential foundation and paying $1 million to Trump in attorneys’ fees. ABC News also apologized, saying they “regret” the remarks made about Trump.
The defamation case was based on an interview between ABC anchor George Stephanopoulos and Representative Nancy Mace, a Republican from South Carolina. Stephanopoulos questioned Mace, a survivor of rape and an outspoken advocate for survivors of sexual assaults, about her endorsement of Trump. In the interview, Stephanopoulos said that “Donald Trump has been found liable for rape by a jury. Donald Trump has been found liable for defaming the victim of that rape by a jury.”
Trump sued for defamation on the ground that he had not been found liable for rape. But he had twice been found liable by a jury of sexual battery against Carroll. In May 2023, a jury found that Trump sexually abused Jean Carrol and awarded $5 million for battery and defamation. The judge, in August 2023, dismissed a countersuit by Trump and said that the claim Trump raped Carroll was “substantially true.” The judge wrote that Trump “raped” her in the broader sense of that word, as people generally understand it, though not as it is narrowly defined by New York state law. To be more specific, Judge Kaplan explained that the jury found that Trump sexually penetrated Carroll with his fingers and without her consent, sufficient for rape under federal law but not New York law. Indeed, what Trump did, as Judge Kaplan recognized, generally would be regarded as rape.
In light of these findings, it is very difficult to see how Trump could have prevailed in his defamation suit against ABC News. It is also hard to see how it can be said that Stephanopoulos spoke with actual malice, that is, he knew his statement to be false or acted with reckless disregard of the truth.
In January 2025, Meta agreed to a $25 million settlement with Trump – with $22 million going to the Trump library and $3 million to pay his legal fees – for another frivolous lawsuit. Trump had sued Facebook and Instagram for violating the First Amendment by barring him from those platforms after January 6. But Facebook and Instagram are private entities, and the First Amendment does not apply to them at all. Any first year law student knows that. But Meta capitulated rather than litigate against the President.
Most recently, on July 2, it was announced that Paramount Global would pay $16 million to settle Trump’s lawsuit which alleged that “60 Minutes” had deceptively edited an interview with Kamala Harris to favor her during the 2024 presidential election campaign. Trump had sued for $20 billion. Again, the suit was groundless. The First Amendment protects the discretion of news stations in how to present stories. But perhaps Paramount settled because it wants Federal Communication Commission approval of its proposed $8.4 billion merger with Skydance Media. On Tuesday, July 22, President Trump bragged of the settlement and said that there could be another $20 million forthcoming.
The pattern is very disturbing. Trump files groundless suits against the media, and, time after time, they cave rather than litigate. It, of course, is possible that the Wall Street Journal could do this too. But my hope is that this time the media will fight back and help end Trump’s efforts to intimidate the press once and for all.
