ABC News capitulation on Trump lawsuit is bad for all of us
As the Des Moines Register may soon find out
(This column was written Monday, December 16th just prior to Donald Trump filing a lawsuit against the Des Moines Register and pollster Ann Selzer. I’ve since read through the lawsuit, which was filed under Iowa’s consumer protection law. Lawyers on behalf of the Register have petitioned to move the case from state district court in Polk County to federal court. Fellow IWC writer Laura Belin has written an excellent analysis of the lawsuit and its merits, or lack thereof. She calls it “a weak case by any measure.” My comments below about the capitulation by ABC News remain valid. Dave Busiek, 12-21-24)
The decision by ABC News to fork over $16 million dollars to settle a lawsuit from Donald Trump is bad news for journalists and for those who depend on them.
The decision by ABC to fold their cards will only encourage Trump and his supporters to file even more lawsuits against media outlets. These libel lawsuits are meant to intimidate journalists into not pursuing aggressive stories against Trump.
Briefly, the facts of the case: In March, while interviewing a member of Congress, ABC anchor George Stephanopoulos stated that Trump had been found civilly liable for rape and for defaming the rape victim. Stephanopoulos didn’t have it quite right. The New York jury found Trump liable for sexual assault, not rape. Although the victim claimed Trump had raped her, New York state law requires nonconsensual penetration of the vagina by a penis to be classified as rape. Any other kind of penetration is defined as sexual assault. Trump denies the allegation and has appealed the civil verdicts.
Trump sued ABC News within days, and this past weekend, before the parties had even been deposed, ABC News agreed to contribute $15 million to the future Trump presidential library, pay Trump $1 million for legal fees, and post a note on its website saying ABC News regrets the statements by Stephanopoulos.
What did ABC News fear?
Media and legal analysts are wondering why ABC News caved. Trump often threatens to sue media outlets, and sometimes does, but he rarely prevails.
Mike Giudicessi of Des Moines, who recently retired after a long career as a libel defense lawyer for media clients, told me, “It is sad that ABC didn’t have the resolve to keep up the fight and take the case to its logical end, which in my view is a vindication of the doctrine of substantial truth.”
That doctrine holds that journalists don’t have to have it 100% right. Giudicessi points to a 1985 Iowa court case where a sexual assault victim sued the Iowa State Daily, the student newspaper in Ames, which had reported on a bar patron who “raped” an employee of the bar. The attacker had forced the woman to perform oral sex. The victim, who wasn’t named in the story, still didn’t like reading in the paper that she had been “raped” because she understood that term to apply only to vaginal intercourse. She sued the Iowa State Daily and won at the trial court. But the Iowa Supreme Court overturned the verdict, ruling “the article used the word ‘rape’ in the broad sense of ‘any forced sex act’ and in that sense, the word was accurate and truthful.” The court also wrote “It is not necessary to establish the literal truth of precise statements made. Slight inaccuracies of expression are immaterial provided the defamatory charge is true in substance.”
Giudicessi says, “You have to wonder what ABC feared that the Iowa State Daily didn’t fear.”
ABC could have and should have fought this further, because it could argue what Stephanopoulos said was substantially true. Writing a big check to Trump at this point appears to me as appeasement – a classic case of “obeying in advance.” That’s exactly what Trump wants – to discourage journalists from critical coverage of him.
Iowa Poll - election interference?
The ABC cave-in was unwelcome news for the Des Moines Register and the director of the Iowa Poll, Ann Selzer. Trump said yesterday at a news conference that he will probably sue the Register and Selzer over the poll three days before election day that showed Kamala Harris winning Iowa by three points. Trump said, “In my opinion, it was fraud and it was election interference,” adding, “we’ll probably be filing a major lawsuit against them today or tomorrow.”
There’s no dispute that the Iowa Poll blew it. Trump won Iowa by 13 points. I don’t see any basis for a successful lawsuit here. The law requires a public figure like Trump to prove the Register knew that the poll was false AND proceeded with reckless disregard for the truth anyway. It’s a high bar for any public figure to clear.
I’ve known Ann Selzer for many years. She takes her craft seriously. She oozes integrity. She got this one wrong, but to allege she did it on purpose? It’s ludicrous.
Selzer has been open about the big miss. She was on Iowa PBS’ Iowa Press program last Friday night and said, “I’m mystified about what the motivation anybody thinks I had and would act on in such a public poll. The allegations I take very seriously. They’re saying this was election interference, which is a crime. The idea that I intentionally set up to deliver these results - I’ve never done that before. I’ve 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, that I was being paid by somebody - it’s hard to pay too much attention to it. Except that they’re accusing me of a crime.”
The Register released a statement to CBS News that said in part, “We stand by our reporting on the matter and believe a lawsuit would be without merit.”
The merits of the case likely won’t stop Trump from suing media outlets because for him, harassing lawsuits are one way of removing an obstacle in his path. And even though the Register and Selzer would have a strong defense, a court fight can be expensive and distracting.
Mike Giudicessi says libel law is being weaponized in the Trump era, and that’s going to be horrible for media owners. “Ultimately, they’re going to be spending money on defense rather than news gathering.” And that could mean fewer reporters knocking on doors and holding public officials’ feet to the fire. Serious news consumers already worried about a shrinking local news product may know even less about their communities.
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It is clear to me that Trump wants to continue intimidating the press. In the near future, every editor is going to pause when there is an opinion article critical of Trump and wonder if its worth running for fear of a costly lawsuit. And going after Selzer is convenient; pollsters will now be wary of reporting any negative results they might uncover in their work. As for the courts, Trump conveniently has stacked the deck so a legal ruling that might have occurred in 1975 or 2000 now teeters on MAGA judges who owe the great Donald their very existence. My Iowa State journalism professors are turning over in their graves as every day I feel closer and closer to life in Moscow.
Yes, I'm angry and frustrated. Three-quarters of this country doesn't follow the news (and many of those watch Fox...aka State TV). They vote for this guy to lower the cost of eggs and he rips apart the institutional fabric of the country. And then says getting grocery prices down will be "hard". Oh really?
Can't prove it, but firmly believe the Selzer miscue more likely promoted more Trump turnout than for Harris--chipped away at MAGA over-confidence and enhanced the margin of victory.