Donald Trump says itβs just not fair.
The president, through his campaign, is suing television station WJFW-TV in Rhinelander for airing a political ad that allegedly defamed him.
βThe advertisement was the product of an intentional and malicious effort to manufacture a false statement through the use of digital technology,β the lawsuit filed on April 13 in Price County Circuit Court charges. It says the station is liable for airing the βfalse and defamatory content.β
Produced by Priorities USA Action, a Democratic super PAC, the advertisement included clips from Trump as COVID-19 became a pandemic, including saying βthis is their new hoax.β
Trumpβs campaign alleges that the ad implies he called the coronavirus a hoax; it maintains that he was referring to how Democrats were politicizing the pandemic.
And so the campaign targeted stations in battleground states with a cease and desist letter, saying the ad βstitched together fragments from multiple speeches by President Trump to fraudulently and maliciously imply that President Trump called the coronavirus outbreak a βhoax.ββ
WJFW received the cease and desist letter but continued airing the ad. Trumpβs campaign sued the station for defamation. On April 27, WJFW had the case removed to federal court in Wisconsin.
Trump is not the only public official testing the language of politics in the courtroom. Wisconsin Supreme Court candidate Jill Karofsky also recently sued to block ads she claimed were defamatory.
The ads aired by outside interest groups alleged that Karofsky, as a Dane County prosecutor, βwent easyβ on a defendant charged in 1999 with child enticement and first-degree sexual assault of a child. He ultimately pled guilty to lesser charges and was sentenced to three yearsβ probation with no jail time.
Court records show that Karofskyβs involvement in the case did not begin until more than a year after sentencing, prompting the PolitiFact Wisconsin to give the ad a βpants on fireβ rating, signifying that it was completely false.
Karofsky sued in Milwaukee County Circuit Court, with her campaign manager declaring, βNo organization should get away with spending millions of dollars on ads they know are false.β
But a judge refused to block the ads, saying that to do so before they were determined to be defamatory would constitute an unlawful prior restraint. Karofsky went on to win the election.
Political ad defamation suits are difficult to win. But even the filing of a lawsuit, successful or not, can chill political speech. Filing suits based on negative ads and flooding battleground markets with takedown demands quiets the voice of opposition.
The Trump campaignβs lawsuit against WJFW is also a reminder of the risk broadcasters face by accepting campaign ads.
Broadcasters cannot be sued for claims made in ads placed by candidates, but suits based on ads from third parties like PACs are fair game.
WJFW may prevail on First Amendment grounds. Supreme Court precedent requires public figures to prove that speakers knew, or should have known, their statements were false but published them anyway.
That is a difficult burden, especially given decisions requiring courts to overlook small inaccuracies and protect substantially true statements β those that capture the βgist and stingβ of the truth β from defamation liability.
Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (wisfoic.org), a group dedicated to open government. Natalie A. Harris is a graduate of the University of Wisconsin Law School and a partner at the Chicago boutique media defense firm Baron Harris Healey.
The nonprofit Wisconsin Center for Investigative Journalism (wisconsinwatch.org) collaborates with Wisconsin Public Radio, PBS Wisconsin, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.