Trump Campaign Sues Wisconsin Broadcaster Over Virus-Response Ad

President Donald Trump speaks about the coronavirus at the White House on April 9, 2020. (AP Photo/Andrew Harnik)

(CN) – Claiming its message is defamatory, President Donald Trump’s reelection campaign sued a Wisconsin television station Monday over an ad criticizing Trump’s response to the coronavirus pandemic.

Wisconsin broadcaster Northland Television ignored the campaign’s cease-and-desist letter about an ad produced by Democratic Super PAC Priorities USA, according to the lawsuit filed Monday in Price County Circuit Court.

The broadcaster’s station WJFW, an NBC affiliate based in the small northern Wisconsin city of Rhinelander, aired the ad 36 times in the 11 days following the campaign’s March 25 cease-and-desist letter, the complaint states.  

The ad opens with a recording of Trump’s voice saying “the coronavirus” followed by “this is their new hoax” as a line graph of nationwide coronavirus cases creeps upward onscreen. That audio, the campaign argues, was manipulated to change its meaning – “this is their new hoax” referred to “his political opponents’ response to the coronavirus,” rather than the virus itself, according to the lawsuit, and was said several seconds after Trump mentioned the coronavirus.

The claim that Trump had called the virus a hoax had been debunked by several fact-checking organizations weeks before the station began airing the ad, the campaign claims.

“A viewer of the PUSA ad as broadcast by WJFW-NBC would understand the false communication to state the position of the Trump campaign, and it leads viewers to believe that the Trump campaign’s position is that the coronavirus pandemic is a ‘hoax,’” the complaint said. “Stating this as the position of the Trump campaign has harmed and will harm the reputation of the Trump campaign.”

According to the campaign, Trump’s full comment was: “They tried the impeachment hoax. That was on a perfect conversation. They tried anything, they tried it over and over, they’ve been doing it since he got in. It’s all turning, they lost. It’s all turning, think of it, think of it. And this is their new hoax.”

Jenna Ellis, the campaign’s senior legal adviser, said in a statement that the campaign is “left with no other option than to use the force of law to ensure these false and defamatory ads cease.”

“It is disappointing that WJFW-NBC would knowingly continue to broadcast this blatantly false ad and perpetrate falsehoods on the American people, even after the Trump campaign provided proof in good faith of the ad’s falsity,” she said.

Management at WJFW did not respond to a request for comment Monday afternoon. The case has been assigned to Prince County Circuit Judge Kevin Klein.

Defamation suits have been a hallmark of Trump’s campaigns and presidency. In February and March, the president’s reelection campaign sued The Washington Post, CNN and The New York Times for publishing opinion pieces raising concerns that Trump had encouraged foreign governments to aid his 2016 presidential campaign and  left open the possibility of seeking interference in the 2020 election.

Those suits cited the findings of former special counsel Robert Muller that Trump campaign staff had not intentionally coordinated with Russian operators to support Trump’s bid for the presidency as reason to find the opinion pieces defamatory.

Trump has taken a consistently aggressive posture toward the media, calling journalists “enemies of the people” early in his political career and promising supporters that he would “open up our libel laws” to make it easier to sue journalists and news outlets.

The president himself has also been the target of defamation lawsuits since his election, including by two women accusing him of publicly lying about sexually assaulting them.

With the libel laws as they stand, John Diamond, a law professor and mass media law expert at the University of California Hastings College of Law, said he was skeptical of the Trump campaign’s case.

“In order to win a defamation lawsuit, [Trump], as a public official, would have to prove New York Times malice, constitutional malice,” he said in an interview. “He would also have to prove that it was false. I think he would have difficulties– I know he would have difficulties on both of those prongs.”

Diamond referred to New York Times v. Sullivan, a landmark 1964 U.S. Supreme Court case establishing a requirement that public-figure plaintiffs in defamation cases prove that defamatory statements were both false and published with the knowledge that they were false.

“There is a great deal of margin for New York Times malice,” he added.

Suing a TV station during a campaign, the professor said, would be still more difficult, since stations aren’t generally held liable for the content of campaign ads.

As to why Trump’s campaign would direct its suit to a small station in a city of 7,000 people, Diamond said he could only speculate.

“Maybe it’s a TV station that cannot afford to litigate as easily as someone else,” he said. “A more wealthy media outlet would have lawyers on staff, and would be more willing to pursue things. Others might not be willing to risk a defamation lawsuit.”

Gerald Thain, professor emeritus at the University of Wisconsin – Madison Law School, also expressed doubt in the Trump campaign’s case.

“I see no merit in a lawsuit against this advertisement which appears simply to replay mostly public and fairly well-known earlier comments by President Trump in order to criticize his response to the pandemic,” Thain said. “This appears well within the boundaries of allowable speech, especially in political campaigns.”

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