Case 1:20-cv-01045-MLB Document 18 Filed 06/19/20 Page 1 of 27

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

)
DONALD J. TRUMP FOR PRESIDENT, )
INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 1:20-CV-1045
)
CNN BROADCASTING, INC.; CNN )
PRODUCTIONS, INC.; and CNN )
INTERACTIVE GROUP, INC., )
)
Defendants. )
)

PLAINTIFF’S OPPOSITION TO CNN’S MOTION TO DISMISS

I. INTRODUCTION

This is a straightforward defamation case. Defendants CNN Broadcasting,

Inc., CNN Productions, Inc. and CNN Interactive Group, Inc. (collectively, “CNN”)

accused Plaintiff Donald J. Trump for President, Inc. (the “Campaign”) of having

“assessed the potential risks and benefits of again seeking Russia’s help in 2020 and

[] decided to leave that option on the table.” This was and is completely false: the

Campaign has done, and is doing, no such thing.

Despite CNN’s attempts to dress this up as a matter of “opinion,” this is a

factual issue, not one of opinion. Either the Campaign did, or did not, weigh the
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costs and benefits of seeking Russian assistance in the election and decide to leave

the option “on the table.” Any reasonable reader would construe this as a factual

claim, not a matter of opinion, despite CNN’s attempt to label the piece as a whole

as an “opinion.” Under controlling case law, the label “opinion” is not dispositive,

if a publication makes factual claims.

Further, there is extensive factual evidence that was available to CNN at the

time of publication, and which CNN included its own reporting on the Campaign,

confirming that its statements and accusations at issue were, and are, false.

Accordingly, the Campaign has adequately pled actual malice.

CNN’s motion does not present a legally cognizable ground to dismiss the

Complaint. Rather, CNN misrepresents the content of the defamatory statement that

it published, improperly refers to material that is outside the record on a motion to

dismiss, and seeks a dismissal based on empty rhetoric about the First Amendment,

but unsupported by the actual case law which interprets it.

The Campaign is entitled to a determination by the jury on the factual issue

of whether the Campaign “assessed the potential risks and benefits of again seeking

Russia’s help in 2020 and [] decided to leave that option on the table,” and to present

evidence that such statements could not be further from the truth. The Complaint

states a valid cause of action for defamation, including actual malice, and therefore

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the instant Motion to Dismiss should be denied.

II. STATEMENT OF FACTS

A. Allegations of Complaint1

On or about June 13, 2019, CNN published an article by Larry Noble entitled

“Soliciting dirt on your opponents from a foreign government is a crime. Mueller

should have charged Trump campaign officials with it” (the “Article”). Complaint

[Dkt. 1] ¶ 12. The Article claims, among other things, that the Campaign “assessed

the potential risks and benefits of again seeking Russia's help in 2020 and has

decided to leave that option on the table.” Id. No facts, reasoning or quotes are

offered in the Article in support of this claim. Id.

The Article’s claim is false. Id. ¶ 13. The Campaign has repeatedly and

openly disclaimed any intention to seek any Russian involvement or assistance in

the 2020 election. Id. The examples of this are too numerous to fully set forth

herein, but include: (a) then-Press Secretary Sarah Sanders stated on August 2, 2018

that “[s]ince the beginning of his administration, President Trump has implemented

a whole-of-government approach to safeguard our nation’s elections. The President

has made it clear that his administration will not tolerate foreign interference in our

1
On this motion, the Court must “accept all of the factual allegations in [the]
complaint as true”. Douglas v. United States, 814 F.3d 1268, 1274 (11th Cir. 2016).
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elections from any nation-state or other dangerous actor”; (b) on September 12,

2018, while signing an Executive Order imposing sanctions on foreign countries

who interfere in United States elections, the White House issued a statement that

“the United States will not tolerate any form of foreign meddling in our elections;”

and (c) on May 13, 2019, the White House stated it would not use any information

hacked or stolen by foreign adversaries in the 2020 election. Id. There have been

no public statements made by the Campaign or the White House, or any other

reliable public information with respect to the 2020 election that can be reasonably

interpreted as the Campaign “seeking Russia’s help,” assessing the “risks and

benefits” of it, or “leav[ing] that option on the table.” Id. ¶14.

Furthermore, extensive reporting on the Campaign and its strategies,

including by CNN, reveals that there have been no reports whatsoever (other than

the Article) of any assessment by the Campaign to potentially seek Russian

assistance in connection with the 2020 election, or any decision of the Campaign to

“leave that option on the table.” Id. ¶ 15.

Moreover, there is extensive public information that CNN, and Mr. Noble, are

biased against the Campaign and its candidate, Mr. Trump. Id. ¶¶ 16–22. CNN

producers and employees were caught on camera admitting the network’s bias

against Mr. Trump, and Mr. Noble has written numerous articles and tweets calling

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Mr. Trump a criminal, a liar, and a cheat. Id. ¶¶ 17–20, 22.

The Article’s false allegations at issue have caused damage to the Campaign

and, as a result, the Campaign must expend funds on advertisements to correct for

that damage. Id. ¶ 26.

B. Procedural History

The Complaint was filed on March 6, 2020, alleging a single count of libel.

[Dkt. 1] CNN filed its motion to dismiss on June 5, 2020. [Dkt. 16]

III. THE MOTION TO DISMISS SHOULD BE DENIED

A. Standard on a Motion to Dismiss

For a defendant to prevail on a motion to dismiss, the defect must appear on

the face of the complaint, Chong v. Healthtronics, Inc., 285 Fed. Appx. 647, 648

(11th Cir. 2008), or from matters judicially noticeable, Bryant v. Avado Brands, Inc.,

187 F.3d 1271, 1276 (11th Cir. 1999).2 The pleading standard is minimal. The

complaint need merely “proffer enough factual content to raise a right to relief above

the speculative level.” Speaker v. U.S. Dep’t of Health & Human Services, 623 F.3d

1371, 1381 (11th Cir. 2010) (internal quotation omitted). “In deciding a Rule

12(b)(6) motion to dismiss, the court must accept all factual allegations in a

2
Judicial notice is limited to facts that are “not subject to reasonable dispute.” Fed.
R. Evid. 201(b).
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complaint as true and take them in the light most favorable to plaintiff….” Dusek v.

JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016). “[T]he complaint

should be read as a whole, not parsed piece by piece to determine whether each

allegation, in isolation, is plausible.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,

594 (8th Cir. 2009); accord Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st

Cir. 2013) (“We emphasize that the complaint must be read as a whole.”).

CNN cites to the rule that material referenced in the Complaint but not

attached, or a web page that contains the defamatory statements, may be considered

on a motion to dismiss. While this is true, the rule is merely an application of the

judicial notice rule; in such cases, there is no serious dispute as to the material that

the defendant seeks to introduce. Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225

(11th Cir. 2002) (such materials are judicially noticeable because there is “little

question of their authenticity”); see Fed. R. Evid. 201(b). However, as set forth in

more detail below, CNN abuses that rule here, attempting to bring in material that is

not referenced in the Complaint at all and that is not otherwise judicially noticeable.

B. Georgia Law Applies To This Action.

Under Georgia conflicts principles, “the law of the jurisdiction where the

publication occurs determines the rights and liabilities of the parties.” Triguero v.

ABN AMRO Bank N.V., 273 Ga. App. 92, 95, 614 S.E.2d 209, 212 (2005). Here, the

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publication occurred in Atlanta, where CNN is located. Thus, Georgia law applies.

CNN argues that New York law applies here because it is the domicile of the

plaintiff: the Campaign. However, the case CNN cites, Adventure Outdoors Inc. v.

Bloomberg, 519 F. Supp. 2d 1258, 1280 (N.D. Ga. 2007), rev’d on other grounds,

552 F.3d 1290 (11th Cir. 2008), does not apply an inflexible rule that the law of the

state of the plaintiff’s domicile always applies in a defamation case. Rather, it holds

that the law of the jurisdiction with the “most significant relationship” to the case

will apply under the Restatement (Second) Conflict of Laws, which Adventure

Outdoors asserts will “generally” be the plaintiff’s domicile. 519 F. Supp. 2d at

1280. Adventure Outdoors never says that it will always be the plaintiff’s domicile.

The Restatement’s “most significant relationship test” involves seven factors:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Restatement (Second) Conflict of Laws § 6(2).

CNN offers no analysis as to why these factors supposedly favor applying

New York law. In fact, each factor either favors the application of Georgia law or

is inapplicable to this case. Factors (a) and (b) are irrelevant here, there are no
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special policies of the international or interstate judicial systems with respect to

conflicts rules in defamation cases. The remainder of the factors all favor the

application of Georgia law: Georgia has an interest in ensuring that media

companies that are headquartered in the state adhere to Georgia law. This will also

ensure certainly, predictability, and uniformity of results with respect to any

defamation cases brought against CNN, and ease in the determination and

application of the law to be applied. If 50 different state laws were to be applied to

lawsuits in Georgia regarding CNN’s reporting, because CNN reports about people

and entities in all 50 states, it would lead to inconsistent holdings, inconsistent

application of the law, and enormous complexity.

Accordingly, factors (c), (d), (e), (f), and (g) all favor the application of

Georgia law. Georgia has a greater interest in the uniform application of defamation

rules to its publishers and broadcasters, who in turn have a justified expectation in

their publications being governed by a single set of rules; the basic policies

governing defamation law require a clear, consistent set of rules applied to each

publisher; and this will promote certainty of result and ease of determination. The

state with the most significant relationship to this case is Georgia, and therefore

Georgia law should apply.3

3
As set forth infra, this action should not be dismissed even if New York law applies.
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C. The Complaint Pleads the Elements of Defamation Under Georgia

Law

“A libel is a false and malicious defamation of another, expressed in print,

writing, pictures, or signs, tending to injure the reputation of the person and exposing

him to public hatred, contempt, or ridicule.” O.C.G.A. § 51-5-1(a).

The Complaint pleads all these elements:

1. The Complaint pleads falsity: The Complaint pleads that CNN made a

factual statement of and concerning the Campaign, specifically, that the Campaign

“assessed the potential risks and benefits of again seeking Russia’s help in 2020” (a

false factual statement) and “has decided to leave that option on the table” (a second

false factual statement). The Complaint pleads that these statements are false.

2. The Complaint pleads that the Article tends to injure the Campaign’s

reputation and to expose it to hatred, contempt, or ridicule. The Campaign also

specifically alleges that it will have to expend money on corrective advertisements

due to CNN’s false statements of fact. Further, the nature of the Article’s accusation

is particularly inflammatory, asserting that the Campaign is considering colluding

with the Russian Federation, a nation whose interests have been at odds with the

United States and which was accused of interfering in the 2016 election. See, e.g.,

Gertz v. Robert Welch, Inc., 418 U.S. 323, 326 (1974) (holding accusations that

plaintiff was a “Leninist” and a “communist-fronter” are actionable defamation).

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3. The Complaint pleads common law malice. The false statement itself

establishes malice. Schafer v. Time, Inc., 142 F.3d 1361, 1367 (11th Cir. 1998)

(“Any statement can be malicious in the sense that it is of a type calculated to injure,

regardless of how the writer feels towards his subject, if it suggests injurious (or,

more plainly, bad) things about the subject to the ordinary reader.”); accord Simon

v. Shearson Lehman Bros., Inc., 895 F.2d 1304, 1320 (11th Cir. 1990). While the

Campaign was not required to allege malice specifically, it did so, in the form of

extensive evidence of CNN’s and Mr. Noble’s animus towards the Campaign and

its candidate, as well as the public evidence refuting CNN’s and Mr. Noble’s false

accusations, and the lack of evidence supporting their false accusations.

4. The Complaint pleads damages. Because the defamation alleged tends

to injure the Campaign in its trade, occupation, or business, no special damages need

be alleged. Stalvey v. Atlanta Business Chronicle, Inc., 202 Ga. App. 597, 600, 414

S.E.2d 898, 901 (1992). However, even so, the Complaint specifically alleges that

it will have to incur the expenses of placing corrective advertisements as a result of

CNN’s defamatory statement.4

4
The elements of defamation under New York law are similar to Georgia law and
are well-pleaded here. “In order to prove a claim for defamation, the plaintiff must
show: (1) a false statement that is (2) published to a third party (3) without privilege
or authorization and that (4) plaintiff is caused harm, unless the statement is one of
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D. The Statement in the Article is Not a Protected Opinion

CNN argues that the Article’s statements that the Campaign actively assessed

the “risks and benefits” of seeking Russian assistance in the 2020 election, and

decision “to leave that option on the table” is a matter of opinion, and as such non-

actionable. This is incorrect. The Article is not mere rhetoric, stating Mr. Noble’s

opinion as to whether he thinks the Campaign or the President is too close to Russia.

Rather, the Article states a factual claim: that the Campaign affirmatively made an

assessment of the “risks and benefits” of seeking Russian assistance in the 2020

election, and also that it made an affirmative decision to keep that “option” open.

These are factual statements about two actual decisions that the Campaign

supposedly made—to conduct an assessment, and to leave an “option on the table.”

That either did or did not happen—it is not a matter of opinion.

There is no constitutional protection for false statements of fact. Gertz, 418

U.S. at 340 (“[T]here is no constitutional value in false statements of fact….”).

There also is no “wholesale defamation exemption for anything that might be labeled

‘opinion.’” Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990).5 To do so would

the types of publications actionable regardless of harm.” Cardali v. Slater, 57

N.Y.S.3d 342, 346 (N.Y. Supr. Ct. 2017).
5
CNN admits that labeling the Article “opinion” is “not dispositive.” Motion at 18.
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“ignore the fact that expressions of ‘opinion’ may often imply an assertion of

objective fact.” Id.

The test for opinion was set out in Brewer v. Purvis, 816 F. Supp. 1560, 1580

(M.D. Ga. 1993), aff’d, 44 F.3d 1008 (11th Cir.), cert. denied sub nom., Brewer v.

Clarke County School District, 514 U.S. 1111 (1995): “[T]he district court must

determine whether the defamatory assertion is factual enough to be proved true or

false…. If it cannot be proved true or false then the opinion is constitutionally

protected.” Id.; see Eidson v. Berry, 202 Ga. App. 587, 588; 415 S.E.2d 16, 17

(1992) (“The pivotal questions are whether defendant Berry’s statements can

reasonably be interpreted as stating or implying defamatory facts about plaintiff and,

if so, whether the defamatory assertions are capable of being proved false.”)

The Complaint easily satisfies this standard. The claims that the Campaign

made an assessment of the “risks and benefits” of seeking Russian assistance, and

also made a decision to keep the possibility “on the table,” are capable of being

proven true or false, because the Campaign either did or did not make such an

assessment, and either did or did not make such a decision.

New York law is in accord. The New York doctrine on opinion is as follows:

The key inquiry is whether challenged expression, however labeled by

defendant, would reasonably appear to state or imply assertions of
objective fact. In making this inquiry, courts cannot stop at literalism.
The literal words of challenged statements do not entitle a media
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defendant to ‘opinion’ immunity or a libel plaintiff to go forward with

its action. In determining whether speech is actionable, courts must
additionally consider the impression created by the words used as well
as the general tenor of the expression, from the point of view of the
reasonable person.

Immuno AG v. Moor-Jankowski, 567 N.E.2d 1270, 1273–74 (N.Y. 1991).

Under this definition, the Article is not an opinion. The “impression created

by the words” is that the Campaign made a risks/benefits assessment of seeking

Russia’s assistance for the 2020 election, and made a decision based on that

assessment to leave that option “on the table.” These are objective, factual

assertions—either the Campaign did or did not do these things. It is not an opinion.

CNN makes no serious argument that the Article is an “opinion” under

Georgia law, leaving that position to an unsupported footnote. CNN’s argument is

based entirely on New York law, and has no merit even if New York law is applied.

CNN cites Moor-Jankowski for the proposition that individual defamatory

statements cannot be actionable when the article “as a whole” presents an author’s

opinion, see Motion at 15–16. This is not what Moor-Jankowski holds. In Moor-

Jankowski, the court ruled that an opinion piece full of qualifiers like “appeared to

be,” “might well be,” “could well happen” and “should be” could not be taken as

making factual claims. 567 N.E.2d at 1281. The Article contains no such qualifiers.

Moor-Jankowski made clear that New York law, while requiring courts to take

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into account the full context of the statement, does not provide a license for a media

defendant to label a piece “opinion” and publish false statements of fact under that

banner: “A media defendant surely has no license to misportray facts; false

statements are actionable when they would be perceived as factual by the reasonable

person.” Id. at 1281. The opinion privilege in New York is the privilege to publish

a piece that does not “express[] or imply[] any facts”. Id. (emphasis in original).

Applying the Moor-Jankowski test, while the Article does contain opinions of

and concerning the Campaign and the President relating to other issues, the

statements pleaded in the Complaint are not opinions but rather false factual

statements. There is nothing whatsoever in the Article that would tell the reader that

the statements at issue—that the Campaign made an assessment regarding seeking

Russian assistance in the 2020 election, and also made a conscious decision to leave

that option “on the table”—are not factual claims to be taken seriously. Rather, these

statements are portrayed as actual facts presented as true and offered for the purpose

of supporting Mr. Noble’s arguments and opinions.

An analogy would be if a newspaper published an opinion piece arguing that

a college football coach should be fired (an opinion), but offered as support for that

argument a false claim, made with actual malice, that the coach beat up one of his

players and the player required hospitalization. New York law would surely not

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hold that just because the piece as a whole contained opinions, the false statement

that the coach beat up the player would constitute protected, non-actionable opinion.

Likewise, here, Mr. Noble’s false factual statements at issue, that the Campaign has

made an assessment regarding seeking Russian help in 2020, and has decided to

leave that option “on the table” are actionable defamation even though they may be

offered in support of some other opinion held by Mr. Noble.

Two years after Moor-Jankowski, the New York Court of Appeals confirmed

that the opinion rule does not provide a free pass for media defendants to escape

liability for defamatory statements:

Thus, in determining whether a particular communication is actionable,

we continue to recognize and utilize the important distinction between
a statement of opinion that implies a basis in facts which are not
disclosed to the reader or listener…, and a statement of opinion that is
accompanied by a recitation of the facts on which it is based or one that
does not imply the existence of undisclosed underlying facts…. The
former are actionable not because they convey “false opinions” but
rather because a reasonable listener or reader would infer that “the
speaker [or writer] knows certain facts, unknown to [the] audience,
which support [the] opinion and are detrimental to the person
[toward] whom [the communication is directed]”….

Gross v. New York Times Co., 623 N.E.2d 1163, 1168 (N.Y. 1993) (holding that a

series of articles contained potentially actionable defamatory statements despite the

fact that “not every word and assertion in the disputed articles is false or

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defamatory”) (emphasis added).6

Citing Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997), CNN implies that

the Article “read in context, [is] readily understood as conjecture, hypothesis, or

speculation,” and thus constitutes protected opinion. Motion [Dkt. 16-1] at 16.

However, this is incorrect; read in context, the defamatory statement in the article is

not presented as conjecture, hypothesis, or speculation, but as a factual claim as to

an assessment, and a decision, that the Campaign has actually made.

Cummings v. City of New York, 2020 WL 882335 at *22 (S.D.N.Y. Feb. 24,

2020), cited by CNN, is entirely distinguishable. The issue there was statements by

a broadcaster that speculated on a schoolteacher’s motives in attempting to

demonstrate in her classroom the conditions that slaves faced. The defendant there

6
CNN argues that the Article’s claims are based on disclosed facts. Motion [Dkt.
16-1] at 19. However, there are no facts disclosed in the Article in support of the
claim that the Campaign made a decision to keep the option of seeking Russian
assistance open. The Article does not refer to anything that this factual claim is
based on—not the Mueller Report, not any reporting on the 2020 presidential
campaign—nothing at all. This is confirmed by the purported “disclosed facts” that
CNN cites to: (1) Rudolph Giuliani’s announced trip to meet the president-elect of
Ukraine; (2) an interview of Jared Kushner by Axios; and (3) President Trump’s
interview in which he discussed passively listening to Norway if it came to him with
information about an opponent. Motion [Dkt. 16-1] at 7. These matters were not
provided in the Article as support of the claim that the Campaign had decided to
keep the possibility of seeking Russian assistance on the table, i.e., they were not
disclosed facts in support of an opinion. Moreover, none of these matters offers any
factual support at all to the claim at issue regarding the Campaign supposedly
considering seeking Russian help in 2020.
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speculated that the plaintiff “wanted to break their spirits” and “give them an

inferiority complex.” Id. These statements were held to be non-actionable. The

defamatory statement in the Article is not speculation about the unexpressed

subjective intent of the Campaign, rather, it is a claim that the Campaign made an

actual deliberated decision to keep the possibility of Russian assistance on the table.

Cummings has no application here. Bruno v. New York News, Inc., 456 N.Y.S.2d

837, 840 (App. Div. 1982), which also involved claims about the plaintiff’s

unexpressed subjective intentions, is also distinguishable for the same reason.

CNN makes much of the asserted fact that the President stated to George

Stephanopoulos in an interview that “there’s nothing wrong with listening” if a

foreign country such as Norway called with information on his opponent. Motion at

4. This hearsay statement is not within the pleadings, and is not judicially noticeable.

Even if it were cognizable on a motion to dismiss, it has nothing to do with

the defamatory statement in the Article, which was that the Campaign had made a

conscious decision to reserve the option of seeking Russian assistance (not

Norwegian assistance) in the 2020 election. Complaint [Dkt. 1] ¶ 12. First, the

President made clear that he was not speaking specifically of Russia when he used

the hypothetical example of Norway contacting him. Second, “listening” when a

foreign country offers information is not comparable in any way to reserving the

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option of affirmatively seeking Russian assistance. This distinction is at the heart

of why CNN’s statement is defamatory. Had the Article simply alleged that the

Campaign might use unsolicited information about an opponent’s misconduct that

was discovered by an ally of the United States, there would be no claim here—that

statement would not be defamatory.

However, it is grossly defamatory to suggest that a political campaign has

made a conscious decision to leave open the option of affirmatively seeking the

assistance of a rival foreign power in attempting to win an election. In the

hypothetical scenario the President was discussing regarding listening to Norway,

he would be doing nothing more than passively receiving information from a NATO

ally. In the scenario discussed in the Article, the Campaign is being accused of doing

something entirely different and nefarious.7

E. The Complaint Sufficiently Alleges Actual Malice

The Campaign is concededly a public figure. Thus, it must allege that CNN

acted with “a high degree of awareness of probable falsity,” Gertz v. Robert Welch,

Inc., 418 U.S. 323, 332 (1974), or, in other words, that there were “obvious reasons

7
CNN makes a half-hearted argument that the Complaint does not plead the falsity
of the statement that the Campaign has decided to leave the option of seeking
Russian assistance on the table. The Complaint contains express allegations that the
statement is indeed false. Complaint [Dkt. 1] ¶¶ 13, 29.
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to doubt the veracity of the [author] or the accuracy of his reports.” Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).

Pleading actual malice is governed by the Supreme Court’s standards in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556

U.S. 662, 678, (2009). The actual malice allegations must meet a minimum standard

of plausibility. Michel v. NYP Holdings, Inc., 816 F.3d 686, 702 (11th Cir. 2016).

The allegations in the Complaint easily satisfy this standard. The Campaign

alleges in the Complaint several on-the-record statements by the Campaign

disclaiming any intention to utilize Russian assistance in 2020. Complaint [Dkt. 1]

¶ 13. The Article does not cite to any sources, including any witnesses or documents,

for its support of the statements at issue. Further, the Campaign alleges that CNN

itself, as well as other outlets, have done extensive reporting on the Campaign’s

strategy, and yet there is not a single piece of reporting that supports the claim that

the Campaign made a risks/benefits assessment regarding seeking Russian

assistance in the 2020 election, or that a decision had been made to keep that “option

on the table.” Id., ¶¶ 15–16. These are more than sufficiently plausible allegations

of actual malice to satisfy the Iqbal/Twombly pleading standard. See, e.g., Howard

v. Pope, 282 Ga. App. 137, 139, 637 S.E.2d 854, 857 (2006) (holding that a political

candidate’s defamation suit against his opponent raised a triable issue of fact where

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the defendant claimed the plaintiff put pornography in voters’ mailboxes and the

source who defendant relied upon did not actually know if plaintiff put anything in

the mailboxes); Lake Park Post, Inc. v. Farmer, 264 Ga. App. 299, 302, 590 S.E.2d

254, 258 (2003) (holding that newspaper acted with actual malice when it published

a statement that plaintiff was a “murderer” when the newspaper was aware of

abundant evidence of plaintiff’s innocence).

The actual malice standard is imposed by the U.S. Constitution and therefore

it is no different in New York than in Georgia. Even so, New York case law strongly

supports the Campaign’s position here. The specific issue of pleading actual malice

in a New York defamation action was recently addressed in Palin v. New York Times

Co., 940 F.3d 804 (2d Cir. 2019). In that case, former Alaska governor Sarah Palin

sued the publisher of the New York Times for defamation, for a false statement in an

opinion piece that her campaign mailer contributed to the shooting of

Congresswoman Gabrielle Giffords. Palin is very similar to the case at bar, and

ruled that the complaint adequately stated a cause of action for libel, including actual

malice, and reversed the district court’s order granting a Rule 12(b)(6) motion to

dismiss. The complaint in Palin, like here, alleged that actual malice could be

proven by, among other things, the New York Times’ prior stories which showed

that it was aware of the true facts, but published the false facts in the piece at issue,

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in reckless disregard for the truth. While not considering this dispositive, Palin also

held relevant the plaintiff’s allegations that the Times had been biased against her.

Here, CNN’s arguments as to why actual malice supposedly is not adequately

pled are without merit. First, as noted above, the fact that the President made a

statement to George Stephanopulous in which he allegedly indicated a potential

willingness to passively accept information from Norway about the 2020 campaign

does not negate actual malice, because that is a completely different claim than the

statements at issue claiming that the Campaign first assessed and then made a

decision to keep open the option of affirmatively seeking Russian assistance in the

2020 election. It is striking that CNN would even make this argument—essentially

saying that, because the President stated something relatively innocuous in an

interview, this gives CNN a First Amendment privilege to twist the facts and make

a completely different, sinister factual claim.8

The remainder of CNN’s actual malice arguments are matters for a jury. The

8
CNN argues that the President’s statement “bristled with ambiguities,” citing Time,
Inc. v. Pape, 401 U.S. 279, 290 (1971), and claims that it therefore had a right to
offer its own interpretation of the President’s statement. However, the President’s
statement was not ambiguous (he was speaking hypothetically of the possibility of
passively accepting information from a country such as Norway). Even if there is
any ambiguity in the statement, there is no way one can reasonably interpret the
President’s statement as meaning that the Campaign has decided to leave the option
of actively seeking Russian assistance on the table.
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Campaign is required to merely plead a plausible factual theory of actual malice. It

has done so: that CNN was aware of reporting that contradicted the statements at

issue, but consciously disregarded that reporting and published the defamatory

statements anyway because of CNN’s and Mr. Noble’s clear preexisting biases

against the President.

CNN will have an opportunity to introduce evidence to a jury refuting this

theory of actual malice, namely, that CNN did not, in fact, entertain any serious

doubts about publication despite its biases against President Trump or the extensive

facts that contradicted its claim.

However, CNN cites no case that holds anything similar to the Campaign’s

allegations of actual malice to be implausible and subject to dismissal at the

pleading stage. This is not surprising: while CNN may ultimately disagree with

what the Campaign has pleaded, the factual theory that the Campaign alleges (that a

biased news organization disregarded well-established facts and made a wild

accusation that the Campaign had made an assessment and a decision to keep open

the “option” of collaborating with a rival foreign power), is not implausible at all.

There is thus no bar to this case proceeding to discovery.

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F. So Long as New York Times v. Sullivan Is Satisfied And the Complaint

Pleads a False Statement of Fact, CNN Has No Independent First
Amendment Defense.

The Campaign does not contest that it is a public figure and that the actual

malice standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) applies

here. However, so long as the Complaint adequately pleads actual malice and alleges

a false statement of fact not protected by the opinion rule, CNN’s argument of an

independent First Amendment defense to this action is completely at odds with the

governing case law.

In Milkovich v. Lorian Journal Co., 497 U.S. 1 (1990), the Supreme Court

rejected CNN’s First Amendment argument. Milkovich involved an article in a

sports column, traditionally a forum for opinion within a newspaper’s sports section.

The article implied that Milkovich, a local wrestling coach, lied under oath in a

proceeding before the state high school athletic association, in the context of opining

that people are able to successfully lie in such proceedings and escape sanctions.

The Journal’s central defense was that this was an opinion and that alone

meant it was constitutionally immunized from defamation liability. Id. at 17.

(“Respondents would have us recognize, in addition to the established safeguards

discussed above, still another First Amendment-based protection for defamatory

statements which are categorized as ‘opinion’ as opposed to ‘fact.’”). The Court

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rejected that argument. “We are not persuaded that, in addition to these protections,

an additional separate constitutional privilege for ‘opinion’ is required to ensure the

freedom of expression guaranteed by the First Amendment.” Id. at 20. The Court

stated that the label “opinion” is not decisive, because statements labeled “opinion”

can nonetheless make factual claims:

If a speaker says, “In my opinion John Jones is a liar,” he implies a

knowledge of facts which lead to the conclusion that Jones told an
untruth. Even if the speaker states the facts upon which he bases his
opinion, if those facts are either incorrect or incomplete, or if his
assessment of them is erroneous, the statement may still imply a false
assertion of fact. Simply couching such statements in terms of opinion
does not dispel these implications; and the statement, “In my opinion
Jones is a liar,” can cause as much damage to reputation as the
statement, “Jones is a liar.”

Id. at 18–19.

Thus, there is no special First Amendment privilege for false statements of

fact made within articles labeled as “opinion.” So long as the Campaign makes

plausible allegations of actual malice and pleads a false statement of fact (which it

does), defamation liability would not offend the First Amendment.

CNN also argues for a special First Amendment privilege because the

Campaign has filed lawsuits against other media outlets. CNN does not cite a single

case or authority in support of this claim. The Campaign has the same right as any

other individual or entity to seek redress from the courts for defamation. This fact

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has no more relevance to this case than the number of times that CNN has been

named as a defamation defendant. (A Westlaw search of ‘adv: TI(“cable news

network”) and defamation’ (which should reveal cases where CNN is a party and

defamation is in the text of the case) returns 29 cases published on Westlaw.)

IV. SHOULD THE COURT GRANT THE MOTION TO DISMISS, LEAVE

TO AMEND SHOULD BE GRANTED.

“A grant of leave to amend is particularly appropriate following dismissal of

a complaint for failure to state a claim…, and, in the absence of a declared or

apparent reason, an outright refusal to grant leave to amend is an abuse of

discretion.” Thomas v. Farmville Manufacturing Co., 705 F.2d 1307, 1308 (11th

Cir. 1983). If the Court finds any portion of CNN’s motion meritorious, the

Campaign requests that the Court grant leave to amend. For instance, if necessary,

and among other things, the Campaign can allege with greater specificity that CNN’s

own reporting rebuts the false claim in the Article that the Campaign had left the

option of seeking Russian assistance on the table.

V. CONCLUSION

For the foregoing reasons the motion to dismiss should be denied. If it is

granted in any respect, the Court should grant leave to amend.

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Dated: June 19, 2020

Respectfully submitted,

DONALD J. TRUMP FOR

PRESIDENT, INC,

By: /s/ David Hopkins

J. David Hopkins, Esq.
Georgia Bar No. 366505
J. David Hopkins Law, LLC
130 Barksdale Drive
Atlanta, Ga. 30309
404-353-5184 (o)
[email protected]

HARDER LLP
Charles J. Harder, Esq. (pro hac vice to be filed)
HARDER LLP
260 Madison Avenue
Sixteenth Floor
New York, New York 10016
Telephone: (212) 799-1400
[email protected]

CERTIFICATE OF TYPE SIZE AND STYLE

Counsel certifies that the size and style of type used in the foregoing

document is Times New Roman 14 point.

By: /s/ David Hopkins

Georgia Bar No. 366505

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 Case 1:20-cv-01045-MLB Document 18 Filed 06/19/20 Page 27 of 27

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

)
DONALD J. TRUMP FOR PRESIDENT, )
INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 1:20-CV-1045
)
CNN BROADCASTING, INC.; CNN )
PRODUCTIONS, INC.; and CNN )
INTERACTIVE GROUP, INC., )
)
Defendants. )
)

CERTIFICATE OF SERVICE

I hereby certify that, on this date, I electronically filed the foregoing with the

Clerk of Court using the CM/ECF system which will send email notification of such

filing to all counsel of record.

This 19th day of June, 2020.

By: /s/ David Hopkins

Georgia Bar No. 366505

27