A look back at a Trump lawsuit against a Wisconsin TV station
By Mike Kaszuba
The cease-and-desist letter from the Trump campaign arrived at a small northern Wisconsin TV station in March 2020 – just as President Donald Trump, a Republican, was in the midst of a heated re-election bid.
If the TV station, WJFW-TV in Rhinelander, did not immediately stop airing a political advertisement by Priorities USA, a progressive political action committee (PAC), the Trump campaign said it would take legal action. Priorities USA is one of the Democratic Party’s largest super PACs. (1)
The Trump campaign stated that the ad had used slight-of-hand editing to make it appear that Trump had called the COVID-19 pandemic a “hoax”, making the ad “false and defamatory.” Several national news outlets, including the Washington Post, had also criticized Democrats formischaracterizing what Trump had said.
Nineteen days later, the Trump campaign sued the TV station – a move that began a short but intense legal fight that still has repercussions. (2)
The same issues underlying the WJFW-TV lawsuit are being played out again today and include Fox News’s own legal problems related to the 2020 presidential election, along with a new push to reign in press freedoms being led by Florida Gov. Ron DeSantis, a likely Republican presidential candidate. (3)
In both instances – as in the WJFW-TV case – a landmark U.S. Supreme Court ruling related to press freedoms and the legal doctrine of “actual malice” are at issue: For Fox News, whether the network promoted allegations of voting machine tampering in 2020 even though it knew they were without merit; for DeSantis, whether there is now enough backlash against the media to try to strip away longstanding legal protections for journalists. (4)
A review of court filings by Public Record Media (PRM), a non-profit based in Saint Paul, provides a closer look at the legal tactics the Trump campaign used in 2020 to target a TV station in Wisconsin, a so-called battleground state that was narrowly won by Joe Biden and helped propel the Democrat into the White House.
Though the defamation lawsuit was dismissed after Trump lost the 2020 election, it placed the spotlight on New York Times v. Sullivan, the 1964 ruling by the U.S. Supreme Court. The ruling held that journalists who published false information, particularly regarding a public figure, had to do so with “actual malice” in order to have legally defamed them. The ruling established a cornerstone legal doctrine related to press freedom and free speech that has existed to the present.
Trump campaign sent cease-and-desist letter
On one level, the filings in the lawsuit show how the Trump campaign attempted to stop the Wisconsin station from airing the television ad. In its cease-and-desist letter, the Trump campaign strongly hinted that the TV station’s federal broadcasting license could be in jeopardy if the ad was not pulled. “Your failure to remove this deceptive ad may be ‘probative of an underlying abdication of licensee responsibility’ that could put your station’s license in jeopardy,” wrote Alex Cannon, aspecial counsel to Donald J. Trump For President Inc. (5)
As president, Trump made appointments to the Federal Communications Commission which, among other things, oversees the licenses of TV stations.
The cease-and-desist letter was sent to WJFW-TV on March 25th – 13 days before the presidential primary election in Wisconsin. But the Trump campaign, which said TV stations “throughout the country” ran the ad, zeroed in on the northern Wisconsin station and said the NBC-affiliate ran the ad 36 more times in the 11 days after the cease-and-desist letter.
Wisconsin TV station said no “actual malice”
In the since-dismissed lawsuit, the TV station’s lawyers had argued that the Trump campaign did not meet the “actual malice” threshold. (6)
“The First Amendment stands as the sentinel that ensures lawsuits like this one, filed by a public figure seeking to chill political speech, do not stifle the public debate essential to democracy,” the TV station’s legal response stated. “For this reason, the law requires the Trump Campaign Committee plausibly plead, and prove through clear and convincing evidence, [that] WJFW made the allegedly defamatory statement with ‘actual malice’.” (7)
But the Trump campaign countered: “Indeed, in these times, the dangers of falsified news and manufactured and manipulated audio and video are extreme, and ever increasing. The Supreme Court in 1964 could not have even imagined how polluted and even dangerous the national and worldwide information ecosystem would become.” (8)
Wisconsin critical to 2020 presidential election
In the 2020 presidential election, Trump secured roughly 3,500 more votes than Biden in Oneida County – where WFJW-TV is located. Slightly more than 24,000 total votes were cast in the mostly rural northern Wisconsin county.
But in a critical victory that helped put him in the White House, Biden won Wisconsin by more than 20,000 votes after posting large numbers in Wisconsin’s more populated areas — particularly Milwaukee and Madison. Four years earlier, Trump had won the state, beating Democrat Hillary Clinton by just under 23,000 votes. (9)
Newly-released documents have further highlighted how critical Wisconsin was at the time to Trump’s re-election chances in 2020.
Audio recordings released in early February showed that Trump campaign officials in Wisconsin, in the days following his defeat in November 2020, continued to push the discredited notion that voter fraud had led to Trump’s defeat. The newly-released audio recordings, according to the Associated Press, focused on comments made by Andrew Iverson, who headed the Trump campaign in Wisconsin.
“Here’s the drill,” Iverson is heard saying during a post-election strategy session on Nov. 5, 2020 – two days after the election. “[The campaign] is going to continue to fan the flame and get the word out about Democrats trying to steal this election. We’ll do whatever they need. Just be on standby if there’s any stunts we need to pull.” (10)
Station found itself at center of national political fight
Nearly three years after the Trump campaign sued WJFW-TV, many questions remain unanswered, including why the Trump campaign targeted the small TV station.
WJFW-TV officials did not respond to questions from PRM regarding the lawsuit, nor did lawyers representing the Trump campaign in the case.
Likewise, Priorities USA, the political action committee that created the ad, did not respond to questions submitted by PRM.
The Trump campaign stated that, after filing the lawsuit, it quickly received an email from the TV station’s general manager saying he was “consulting with legal” – but then added that there was no further response from WJFW-TV.
Priorities USA announced its ad campaign on March 24, 2020, one day before the cease-and-desist letter was sent to WJFW-TV. According to the political action committee, the $6 million ad campaign would be aired in Pennsylvania, Florida, Michigan, and Wisconsin, and would attack Trump’s handling of the then-emerging COVID-19 pandemic. In one part of the ad, Trump could be heard downplaying the pandemic during its early days, as a graphic showed the number of cases in the U.S. quickly rising. (11)
The ad and the Trump campaign lawsuit took place against the backdrop of a COVID-19 pandemic that began to grip the U.S. and the world – and changed the trajectory of the presidential campaign.
On March 25, 2020 – the same day the Trump campaign sent its cease-and-desist letter – the U.S. Centers for Disease Control and Prevention (CDC) reported 1,121 weekly deaths in the U.S. Less than a month later, for the week of April 15, the number of deaths had risen to 15,538.
Though the rate of new deaths has since fallen dramatically, the CDC has said that 1.1 million Americans have died from COVID-19. (12)
Trump campaign: TV ad manipulated the use of “hoax”
The Trump campaign focused on Trump’s use of the word “hoax” – arguing that Priorities USA had edited the president’s comments at a South Carolina political rally to make it appear Trump had called the pandemic a “hoax” when, in fact, he was referring to the criticism by Democrats of his handling of the pandemic.
“The coronavirus, this is their new hoax,” Trump is quoted as saying in the 30-second ad. But the lawsuit countered: “The [ad] intentionally creates a false message by manufacturing fake audio and using such fake audio to create a false, captioned quotation, in both cases to make it appear as though candidate Trump said the phrase ‘The coronavirus, this is their newhoax’.” (13)
The campaign added that Priorities USA created a so-called montage ad that combined different sentences that Trump uttered. The false ads have “forced, and will continue to force, the Trump Campaign to expend substantial funds on corrective advertisements,” the campaign added. (14)
Several high-profile media outlets backed the Trump campaign in its criticism of how Trump’s words had been mischaracterized.
In a Face the Nation interview on CBS-TV on March 1, 2020, just days after Trump made his controversial comments, reporter Scott Pelley corrected Democratic presidential candidate Michael Bloomberg regarding what Trump had said. Bloomberg said he found it “incomprehensible that the President would do something as inane as calling [the pandemic] a hoax.” (15)
Replied Pelley: “[Trump said] the Democrats making so much of it is a Democratic hoax, not that the virus was a hoax.”
The Washington Post also was critical of an ad produced by the Biden campaign, which the newspaper said had similarly mischaracterized what Trump said.
“The full quote shows Trump is criticizing Democratic talking points and the media’s coverage of his administration’s response to [the] coronavirus,” the newspaper said. “He never says that the virus itself is a hoax.”
The Post gave the Biden campaign ad a “Four Pinocchios” rating, the newspaper’s highest rating for false information. Four Pinocchio ratings are known, according to the Post, as “whoppers.” (16)
Meanwhile, attorneys for WJFW-TV filed their own response – and argued that the Trump lawsuit was part of a larger attempt to “chill” the media’s ability to examine the Trump administration’s policies, or air criticisms of those policies.
“With this lawsuit, the Committee for President Trump’s re-electioncampaign seeks to punish a small Wisconsin broadcaster for airing the President’s own words about the most alarming public health crisis in a century, the COVID-19 pandemic,” the TV station’s legal response stated. (17)
“This is the fourth defamation lawsuit the Trump Campaign Committee hasbrought against broadcasters and newspapers in three months [in] aclear, concerted effort to chill critical examination of theAdministration’s policies,” the legal response added. The TV station’s response noted that Trump had filed lawsuits against the New York Times, the Washington Post and CNN, the cable TV network, between February 26 and March 6, 2020 over various issues. (18)
The TV station’s lawyers added that the Trump campaign lawsuit focused on just five words – “[T]his is their new hoax” – and ignored other words spoken by Trump that were also part of the political ad.
In the ad, Trump was also quoted as saying – in reference to the pandemic – that “we have it totally under control” and “we really think we’ve done a great job in keeping it down to a minimum.” The president also stated in the ad that “people are surprised that I understand it” and that “no, I don’t take responsibility at all” for the emerging
“The unmistakable gist of this political advertisement, which concludes with the words ‘America Needs a Leader They Can Trust’, is that while President Trump repeatedly boasted about his ‘great’ response to the crisis, the country grew sicker and sicker,” the TV station’s legal response added.
In an additional lawsuit, this one against Priorities USA, the Trump campaign stated that the Democratic-aligned group had sent letters to TV stations after the Trump campaign’s cease-and-desist letter defending the political advertisement. It also said Priorities USA “doubled down and expanded the distribution” of the ad. (19)
The Trump campaign, in that lawsuit, said that Priorities USA acknowledged in its letter to the TV stations that it had spliced together different audio clips of Trump – but said Priorities USA defended its tactics by saying that the controversial statement “was comprised of his ‘words’.”
“At the same time, however,” the Trump campaign added, Priorities USA“also asserted, contrary to the plain audio and textual representation of the Manufactured Statement, that the PUSA ads “do not assert that Mr. Trump said the precise sentence, ‘The coronavirus, this is their new hoax.’ ”
The Trump campaign stated that the “manufactured” statement in the Priorities USA ad “was knowingly and intentionally false and it was defamatory of the Trump Campaign. Such conduct finds no protection in the law,” it added.
Priorities USA: Advertisement is “political speech”
In a 30-page motion to dismiss the Trump campaign lawsuit, Priorities USA said the ad was “a political speech” and protected by the U.S. Constitution’s First Amendment regarding press freedoms. (20)
“It is undisputable that the advertisement is immediately recognizable as political speech criticizing the President, and thus constitutes core political speech that is subject to the First Amendment’s most vigorous protections,” Priorities USA stated.
“This contextual reality, as well as the exceedingly high bar that the Campaign must clear in light of New York Times v. Sullivan’s actual malice standard, make plain that this litigation is intended to intimidate Trump’s critics and the stations that give air time to their criticism,” it added.
But the Trump campaign motion to keep the case alive – filed in July 2020, four months before the presidential election – continued to put pressure on the TV station and Priorities USA.
The Trump campaign stated that Priorities USA, while arguing that the altering of the audio did not “materially change” what the president said, “stitched together” separate statements to falsely portray what Trump said, and that those acts constituted actual malice.
“Actual malice is established where the words are manipulated to make a statement the plaintiff did not in fact make, when the difference between the actual statement and the manipulated statement [is] material,” a legal motion filed by the Trump campaign stated.
“Knowing and intentional fabrication of an audio statement published in an advertisement is by definition actual malice,” the campaign’s lawyersadded.
“To dismiss this action at this juncture would be to endorse false manipulation of the news and intentional deception of the public,” the Trump campaign added. “The danger of falsified audio and video, ‘deepfakes,’ is substantial and deepfakes are rapidly polluting our information universe.” (21)
Case dismissed before merits reached
Before the case moved much beyond preliminary motions, the Trump campaign lawsuit was dismissed – largely because Trump lost his re-election bid in November.
Six days after the November election, attorneys for WJFW-TV made a supplemental motion to dismiss the lawsuit.
“President Trump has lost his bid for reelection, and this Court can neither set those results aside nor recast the election results,” the TV station’s attorneys stated. “In the absence of a redressable ‘injury,’ this lawsuit no longer presents an actual ‘case or controversy’.”
The TV station’s lawyers added: “His campaign lost both Wisconsin’s 10 electoral votes and the presidency.
“Last week, with the [COVID] death toll in the United States at 230,000 and climbing, Wisconsin voters made [their] decision and defeated President Trump,” the supplemental motion to dismiss stated. (22)
Four days after that, the Trump campaign, Priorities USA and WJFW-TV agreed to dismiss the lawsuit with prejudice. Each party agreed to pay their own costs, attorneys’ fees, and expenses. (23)
As 2024 campaign nears, “actual malice” debate intensifies
Even though the lawsuit against WJFW-TV was dismissed more than two years ago, new developments have shined light on the issues raised in the case.
In Florida, DeSantis recently held a roundtable discussion to discuss making it easier for a public figure – and ordinary citizens – to win a defamation lawsuit if the media published false information about them. The roundtable, held in early February, featured the Florida governorsurrounded by people whom he said had tried to hold “big media companies accountable for their actionable lies.” DeSantis took particular aim at the 1964 U.S. Supreme Court ruling and the legal standard of “actual malice.”
The question of “actual malice” is also playing a role in another, ongoing legal defamation case related to the 2020 presidential election: a lawsuit brought against Fox News by Dominion Voting Systems, the company that supplied voting machines for the election and was the target of claims that the company altered its machines to swing votes away from Trump.
In the case, Dominion is trying to show that Fox News acted with “actual malice” in promoting the narrative that the company had played a role in Trump’s defeat.
(Supporting documents for this article can be accessed by contacting Public Record Media at firstname.lastname@example.org , or at 651-556-1381)
(1) Northland legal complaint, P. 61
(2) Northland legal complaint
(5) Northland legal complaint, P. 59-61
(6) All parties stipulation for dismissal
(7) Brief in support of motion to dismiss
(8) Trump memo in opposition to intervener motion to dismiss, P. 33
(13) Northland legal complaint, P. 10
(14) Northland legal complaint, P. 17
(17) Brief in support of motion to dismiss, P. 30
(18) Brief in support of motion to dismiss, P. 8, 9 and 24
(19) Trump complaint against intervener
(20) Intervener brief in support of motion to dismiss
(21) Trump memo in opposition to intervener motion to dismiss, P. 83-84
(22) Defendant’s supplemental memo in support of motion to dismiss
(23) All parties stipulation for dismissal