from the slappity-slapp-slapp-slapp dept

Last year when Donald Trump sued Rupert Murdoch over the WSJ’s article revealing the… um… birthday card he sent Jeffrey Epstein, we pointed out that it was a pure SLAPP suit (and also that it was against a guy who, you could argue, is one of the main reasons he ever got elected). Trump insisted, both publicly and in the lawsuit, that the letter was “a fake thing” and that he never wrote it. So, of course, after the lawsuit was filed, the birthday card was released by the House Oversight Committee that had subpoenaed the Epstein Estate. You’ve seen it by now in all its creepiness.

As we pointed out, the lawyer who brought the suit, Alejandro Brito (who has become the latest of Trump’s go-to lawyers) didn’t seem to have much experience with defamation law, and it shows. Earlier this year, the judge in the case, Darrin Gayles, dismissed the lawsuit while pointing out its many faults. But he gave Trump leave to file an amended complaint, and Trump (of course) took it.

But, no more. Last week Gayles dismissed the lawsuit — with prejudice this time, making sure Trump can’t refile — and the order makes clear that Gayles absolutely knows this lawsuit is bullshit. He opens with a Justice Brandeis quote (from his 1927 concurrence in Whitney v. California) that the Supreme Court leaned on in NY Times v. Sullivan, the 1964 ruling that established our modern-day understanding of how the First Amendment and defamation law work:

Those who won our independence believed * * * that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Famously, the Sullivan case (which includes this quote of the earlier Brandeis concurrence) established the “actual malice” standard for defaming public figures. And, as we repeat every time “actual malice” comes up, it does not mean what people think it means in plain English. Actual malice means that the content was published knowing that it was false or with “reckless disregard” for whether or not it was false — which, in practice, means they had to have entertained serious doubts about whether what they were publishing was true. Judge Gayles had explained the actual malice standard to Brito in the original dismissal, noting that the complaint “comes nowhere close” to meeting the actual malice standard.

Brito, it appears, learned little in his second attempt.

As Judge Gayles notes, the amended complaint still fails to show actual malice:

Here, the Amended Complaint falls short of pleading actual malice. Indeed, the allegations regarding malice are conclusory, vague, sometimes inconsistent with the Article, and often irrelevant to whether Defendants knew or should have known that the statements in the Article were purportedly false.

As the court points out, just claiming that the WSJ “should have known” the content was false is not enough for actual malice. Similarly, the fact that Trump told the WSJ that the story wasn’t true doesn’t make it actual malice. This comes up in all sorts of defamation cases. The plaintiff claims “well I told them it was false, and therefore it’s actual malice.” But that’s not how it works, because people often deny true things.

In effect, President Trump argues that once he declared the Letter a “fake,” Defendants should have disregarded everything else they learned in their investigation and not published the story. But that is not what the actual malice standard requires and runs afoul of the First Amendment. Indeed, were that the law, any time a public figure or his team denies an accusation, journalists would be immediately blocked from publishing negative or contradictory press—a result that flies in the face of the “American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions[.]” Sullivan, 376 U.S. at 269 (quoting Bridges v. California, 314 U.S. 252, 270 (1941)). Moreover, the Article did not ignore or minimize President Trump’s denial. Rather, it informed readers that President Trump decried the Letter as a fake and denied writing it. By “allowing readers to decide for themselves what to conclude from the [Article], . . . any allegation of actual malice [is] less plausible.” Turner, 879 F.3d at 1274; see also Michel, 816 F.3d at 703 (holding that “reporting perspectives contrary to the publisher’s own should be interpreted as helping to rebut, not establish, the presence of actual malice”).

On top of that, the court points out that merely claiming the reporters didn’t do enough investigation is not enough to show actual malice:

As detailed above, a failure to investigate, without more, does not establish actual malice. Id. Rather, “a plaintiff must show the defendant deliberately avoided investigating the veracity of the statement in order to evade learning the truth.” Reed, 2025 WL 1874638, at *3. The Amended Complaint comes nowhere close to this standard. Indeed, the Article details a thoughtful and detailed investigation. Before running the story, Defendants contacted President Trump and his team, Justice Department officials, and the FBI for comment. President Trump and his team responded with his denial, the Justice Department did not respond at all, and the FBI declined to comment. Defendants also attempted to speak with Maxwell; she did not respond to their request and her attorney stated that she was focused on her case before the Supreme Court. In addition, Defendants reached out to other individuals named in the Birthday Book, including Leslie Wexner and Alan Dershowitz, and to individuals involved in binding the Birthday Book, who confirmed that Weitz put the book together. In short, President Trump’s allegation that Defendants failed to conduct an adequate investigation is rebutted by the Article and is insufficient to establish actual malice

The judge accuses Trump and his lawyers of “grasping at straws” to “manufacture flaws with the investigation” but again points out that none of that meets the actual malice standard:

Grasping at straws, the Amended Complaint attempts to manufacture flaws with the investigation. First, it alleges that the investigation was lacking because Defendants only reviewed the Letter but did not have a copy in their possession. The Court cannot discern any substantive difference—and certainly not one that would establish actual malice—between Defendants reviewing the Letter before publication and obtaining a copy of the Letter. Defendants reviewed the Letter and later reported on its contents. Nothing in the law suggests that Defendants needed to obtain, retain, or publish a copy.

Also, when the judge has already made clear that your lawsuit is bullshit, maybe don’t play games like pretending the WSJ didn’t report on Trump’s denial when they actually did:

Finally, the allegation that Defendants intentionally omitted President Trump’s denial that he signed the Letter or a discussion on whether the signature on the Letter is authentic, [ECF No. 67 ¶¶ 57-60], is belied by the Article. It states, multiple times, that President Trump denies writing the Letter and that “[i]t isn’t clear how the letter with Trump’s signature was prepared.” [ECF No. 68-2]. This is more than sufficient to encompass any denial that he “signed” the Letter or that the signature on the Letter is authentic.

While Murdoch and the WSJ asked for fees under either Florida or New York’s anti-SLAPP laws, Judge Gayles says it’s unclear which state’s laws apply to the claims here, and that matters, given that they have very different procedural postures. So he reserves that issue to explore separately.

Of course, Donald Trump and Alejandro Brito are not one to give up lightly. They’ve already told the judge they’re appealing to the Eleventh Circuit. Good luck finding an Eleventh Circuit panel that sees actual malice in a complaint this thin.

Meanwhile, Brito, who is also representing Trump in Trump’s even more disastrous lawsuit against the BBC, might want to spend a bit more time focusing on that case? The BBC turned around and decided to use the discovery process to demand all sorts of info on Trump’s businesses and he’s been running and hiding, even backing out of a scheduled deposition citing “other matters of national importance” on a day he spent at a political rally and Mar-a-Lago. But the magistrate judge in that case, Enjolique Lett, has said that Trump has until December 11th to give a deposition or he could face consequences. And the DOJ is also running around trying to block former special counsel Jack Smith from testifying as well.

So, while the bullshit SLAPP suit against Murdoch and the WSJ is dead (pending an appeal that looks doomed), the one against the BBC seems to be blowing up in Trump’s (and Brito’s) face spectacularly.

And this is why we don’t file SLAPP suits.

It’s also why we need more and stronger anti-SLAPP laws in every state and at the federal level. The very fact that this court can’t even deal with the attorney’s fees issue at this point, because of the complex interplay of different state anti-SLAPP laws (and how they work in federal court) is all the more reason to fix our anti-SLAPP laws across the entire country. And maybe, with this new incoming Congress, we can finally get that.

Filed Under: actual malice, alejandro brito, anti-slapp, defamation, donald trump, florida, jeffrey epstein, new york, rupert murdoch, slapp
Companies: bbc, dow jones, news corp.