In two complaints filed last week, Donald Trump contends that CBS and The Washington Post broke the law by covering the presidential election in ways he did not like. His arguments, which seek to punish the news outlets for constitutionally protected activity via legal theories that are fanciful at best, are consistent with Trump's long history of disregarding the First Amendment by treating speech that offends him as grounds for civil damages, regulatory sanctions, or even incarceration.
Trump's lawsuit against CBS, which he filed on Thursday in the U.S. District Court for the Northern District of Texas, seeks $10 billion in damages based on a 60 Minutes interview with Vice President Kamala Harris that he says was edited to make her seem smarter than she actually is. He claims the network's editing violated the Texas Deceptive Trade Practices Act (DTPA).
That claim hinges on two excerpts from Harris' response to a question about Israel. One ran on Face the Nation as part of a promo for the 60 Minutes interview, which aired on October 7; the other was presented as part of the interview itself the following day.
In the promo version, 60 Minutes correspondent Bill Whitaker says "it seems" that Israeli Prime Minister Benjamin Netanyahu "is not listening" to U.S. concerns about the war in Gaza. Harris responds with what Trump describes as "her typical word salad," saying, "Well, Bill, the work that we have done has resulted in a number of movements in that region by Israel that were very much prompted by, or a result of, many things, including our advocacy for what needs to happen in the region." In the version that aired the next day on a special edition of 60 Minutes, Harris responds to the same prompt with an answer that is slightly clearer but still vague and weirdly phrased: "We are not gonna stop pursuing what is necessary for the United States to be clear about where we stand on the need for this war to end."
Harris does not come across as particularly sophisticated, knowledgable, or forthright in either version. But as Trump sees it, the substitution of the latter answer for the former was "a giant Fake News Scam" and "an UNPRECEDENTED SCANDAL!!!" In an October 29 letter to CBS, Trump lawyer Edward Andrew Paltzik described the editing of the interview as "one of the worst, most deceptive acts in broadcast history."
Trump complained that Harris' "REAL ANSWER WAS CRAZY, OR DUMB, so they
actually REPLACED it with another answer in order to save her or, at least, make her look better." That sin was so egregious, he said, that the Federal Communications Commission (FCC) should "TAKE AWAY THE CBS LICENSE," by which he apparently meant the broadcast licenses held by network-owned stations and CBS affiliates across the country.
In an October 16 FCC complaint, the Center for American Rights argued that CBS violated the agency's policy against "broadcast news distortion." Proving such a claim is a tall order. The FCC "is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press," the commission notes. "News distortion 'must involve a significant event and not merely a minor or incidental aspect of the news report.' In weighing the constitutionality of the policy, courts have recognized that the policy 'makes a crucial distinction between deliberate distortion and mere inaccuracy or difference of opinion.' As a result, broadcasters are only subject to enforcement if it can be proven that they have deliberately distorted a factual news report."
On October 20, CBS rejected Trump's charge of "deceitful editing." The show "gave an excerpt of our interview to Face the Nation that used a longer section of her answer than that on 60 Minutes," the network's statement said. "Same question. Same answer. But a different portion of the response. When we edit any interview, whether [with] a politician, an athlete, or movie star, we strive to be clear, accurate and on point. The portion of her answer on 60 Minutes was more succinct, which allows time for other subjects in a wide ranging 21-minute-long segment."
CBS, in other words, conceded that it chose an excerpt from Harris' response that was "more succinct" but said that was standard journalistic practice. Trump, by contrast, says CBS not only violated the public trust in an "UNPRECEDENTED" way; it thereby violated the Texas DTPA, which prohibits "false, misleading, or deceptive acts or practices in the conduct of any trade or commerce."
That statute defines such conduct to include acts or practices "causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services." The law also prohibits acts or practices "causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another." Among other things, the DTPA aims to protect consumers against "unconscionable actions," defined as acts or practices that, "to a consumer's detriment, [take] advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree."
Trump's lawsuit says the 60 Minutes interview "'caus[ed] confusion or misunderstanding' to millions of Americans, and in particular residents of Texas, 'as to the source, sponsorship, approval, or certification of' CBS's broadcast 'services,' rendering it impossible for even the most discerning viewers to determine whether the 60 Minutes interview was independent journalism or de facto advertising for the Kamala Campaign." CBS also allegedly "'caus[ed] confusion or misunderstanding as to' CBS's 'affiliation, connection, or association with' Kamala and her Campaign and caused 'confusion or misunderstanding' as to the Interview's 'certification by' CBS given its legal obligation to broadcast news in a non-distortive manner." The lawsuit adds that the network's conduct "was unconscionable because it amounts to a brazen attempt to interfere in the 2024 U.S. Presidential Election."
These violations by CBS stations in Texas, Trump says, inflicted damages "reasonably believed to be at least $10,000,000,000." In support of that eyebrow-raising estimate, which seems to be drawn from thin air and resembles similarly absurd Trump valuations of the harm caused by speech that annoyed him, a footnote claims that "CBS's distortion of the 60 Minutes Interview damaged President Trump's fundraising and support values by several billions of dollars, particularly in Texas."
Leaving aside Trump's dubious math, his invocation of an anti-fraud statute in the context of a complaint about news coverage raises obvious constitutional concerns. "This is a frivolous and dangerous attempt by a politician to control the news media," First Amendment attorney Charles Tobin told CNN. "The Supreme Court has made it crystal clear: The First Amendment leaves it to journalists—and not the courts, the government, or candidates for office—to decide how to report the news."
The renowned First Amendment lawyer Floyd Abrams had a similar take. "The First Amendment was drafted to protect the press from just such litigation," he said. "Mr. Trump may disagree with this or that coverage of him, but the First Amendment permits the press to decide how to cover elections." Harvard law professor Rebecca Tushnet agreed, saying Trump's lawsuit is "ridiculous junk" that "should be mocked."
In another attempted end run around the First Amendment, Trump on Thursday filed a complaint with the Federal Election Commission (FEC) that accuses The Washington Post of making an illegal corporate campaign donation. The complaint cites a recent Semafor story about the Post's "paid advertising campaign" on social media, which it "aggressively ramped up" last Monday to promote "dozens of articles related to the election." Semafor noted that articles about Harris "were relatively neutral in tone," while the articles about Trump generally were more "critical."
The latter articles included stories "about Trump's campaign rhetoric, his misstatements, his allies' attempts to 'energize him as he struggles to adapt to Harris,' how his campaign damaged Springfield, Ohio, his fixation on the fictional serial killer Hannibal Lecter, how crowds leave his rallies early, and his questioning of the results of the 2020 election." Semafor framed the ad campaign as an attempt to "remind readers that [the Post] is still pretty tough on Donald Trump," notwithstanding its controversial decision to refrain from endorsing a presidential candidate this year.
Trump, by contrast, portrays the ad campaign as a violation of the federal ban on corporate campaign contributions. "Coordinated communications are treated as in-kind contribution to a candidate," his complaint says. As evidence of coordination, Trump attorney Gary Lawkowski notes that the stories promoted by the Post included "multiple quotes [from] Harris campaign officials," which he says "confirm that there have been communications between The Washington Post and the Harris campaign." Furthermore, he says, "the content promoted by The Washington Post mirrors themes and issues highlighted by the Harris Campaign."
According to Lawkowski, in other words, the Post crossed a line by quoting a presidential campaign while covering a presidential election and by reporting on issues raised by that campaign. In case the FEC does not buy that, Lawkowski argues "in the alternative" that the Post's promotion of its election coverage amounted to unreported "independent expenditures."
That category includes "express advocacy," such as "Vote for Harris." It also includes messages that, "when taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate[s]." The Post's promotion of negative stories about Trump fits the latter description, Lawkowski argues, because it was "close in time to the election," mirrored "themes of the Harris campaign," and "harshly and unfairly malign[ed] President Trump, while presenting a fawning portrait of Vice President Harris."
Lawkowski concedes that federal regulation of "independent expenditures" expressly exempts any "press entity" that is "acting within its 'legitimate press function.'" But he says the Post does not qualify for that exception. "By boosting content to influence the election," he says, "The Washington Post is acting like any other partisan player in the election process, not in its capacity as a press entity."
Trump's FEC complaint is "completely preposterous," Columbia law professor Richard Briffault, a campaign finance specialist, told CNBC. "There is no evidence in the allegations of any coordination between the Post and the Harris campaign….And as the Trump letter acknowledges, there is no express advocacy of Harris, so the Post's actions don't count as independent expenditures….This is litigation by press release and not more serious than that."
Trump has sued or threatened to sue critics who said things that offended him, repeatedly advocated looser defamation rules that would improve his chances of prevailing in such cases, and argued that news outlets should lose their broadcast licenses when their coverage makes him look bad. In these most recent cases, Trump is likewise trying to elevate his complaints about unfair press coverage into legal claims that either trigger civil penalties or justify billions of dollars in damages. Although those claims are unlikely to get far, his eagerness to pursue them reflects his utter disregard for freedom of the press.
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