King Henry V Before Harfleur. Watercolor by James E McConnell (1969)
This day is called the feast of Crispian: He that outlives this day, and comes safe home, Will stand a tip-toe when the day is named, And rouse him at the name of Crispian. He that shall live this day, and see old age, Will yearly on the vigil feast his neighbours, And say “To-morrow is Saint Crispian:” Then will he strip his sleeve and show his scars. And say “These wounds I had on Crispin’s day.”
— Shakespeare, Henry V, Act IV, Scene iii
Risk is the distance between courage and cowardice. The greater the risk, the more admirable is the conduct that resists oppression. Then again, at some point, risk makes cowards out of most of us. This is especially true when the government wields its heavy hand in either silencing speech or compelling allegiance to its ideological whims.
It is easy to be righteous when one is not facing the specter of government persecution. For those who are, however, it is hard to be courageous. In such circumstances, compromise seems the sounder course. And yet, such pragmaticism, driven by the prospect of enormous loss, is offset by the reality that a bully is never satisfied — cowardice is the path to yet more oppressive control.
By most reliable measures, the Trump defamation and consumer fraud lawsuit against J. Ann Selzer (a renowned Iowa pollster) and the Des Moines Register, et al, is a highly suspect one — rife with hard-to-believe legal arguments by the plaintiffs. Robert Corn-Revere, FIRE’s lead counsel, is representing Selzer. He tagged the Trump lawsuit as “absurd” and “a direct assault on the First Amendment.”
Just at a time when the lawsuit in federal court neared resolution by way of a likely summary judgment against the plaintiffs, there was a notice of withdrawal of the federal complaint and the accompanying appeal on a remand decision. Thereafter, Gannet (the Register’s parent company) and FIRE opposed the dismissal.
The District Court rejected the plaintiff’s withdrawal. The Eighth Circuit denied Trump’s request to certify his appeal on the remand issue, and rejected his notice to withdraw the appeal as moot. Hence, there is no appeal of Trump’s motion for remand, which the district court had rejected. That meant the case is now ongoing in the federal district court.
More recently, an identical complaint was filed by Trump’s team in state court. Thus, right now the case is pending in both federal and state courts. As if to complicate the matter even further, there is also a class action case against Selzer and the media entities.
What then can be said of these lawsuits? One answer — a compelling one — can be found in a July 7 motion dismissed filed by Corn-Revere on behalf of FIRE in the class action case, Donnelly v.Des Moines Register and Tribune Co., Inc. et al.
Consider the following arguments:
There is no “fake news” exception to the First Amendment:
After Defendant J. Ann Selzer’s Motion to Dismiss explained that the First Amendment bars Donnelly’s class action claims alleging “fake news” because they are antithetical to constitutional history and tradition, ignore decades of jurisprudence rejecting attempts to expand the limited categories of unprotected speech, and lack supporting precedent from any court in any jurisdiction . . . Donnelly’s response was to embrace the horror.
There is no supporting case law:
Of course he can bring claims for “fake news” he huffs, just the same as if he were bringing a product liability action for a dead mouse in a can of Mountain Dew or rotten food from HelloFresh. . . But there is a problem. After filing both a copycat complaint and an amended complaint, a failed effort at an amicus brief in Trump v. Selzer, and now an overlength opposition to motions to dismiss, Donnelly remains unable to cite a single case that supports any of his theories of liability, while ignoring those that have rejected them. He is not even attempting to make “a nonfrivolous argument for extending, modifying, or reversing existing law,” Fed. R. Civ. P. 11(b)(2), but insists his view is the law. Sadly for him, there is no good faith argument for that proposition.
Edward Paltzik, counsel in Trump v. Selzer
There is no plausible legal argument:
Donnelly tries to bolster his claims by overlooking holdings and reasoning in cases that explain why “fake news” has never been recognized as an unprotected speech category. . . Instead, he concocts his theory by piecing together random dicta from cases involving other torts. . . arguing by negative implication from cases that dismissed claims. . . and posing incredulous rhetorical questions meant to suggest the First Amendment can’t possibly mean what it says or what multiple courts have held. . . None of this adds up to a plausible argument for treating publishing an election poll as “fraud,” no matter how much of an outlier its results may have been.
[. . .]
Plaintiff’s claims are barred by the First Amendment, as well as by statutory and common law standards, and this Court should dismiss them with prejudice.
These two lawsuits serve one main objective: to harass the defendants and to make their lives “miserable,” as Trump has said in the past regarding similar actions he has taken. As presented thus far, they are strategic lawsuits against public participation, or SLAPPs — the kind meant to be discouraged by Iowa’s new anti-SLAPP law.
The takeaway: These suits are time-consuming, costly, and intimidating. And yet, they are being fought with no talk of “settlement.”
“Yeah, it was a shakedown. That’s what I call it. I mean, some people call it extortion. That’s a legal term.” — Steve Kroft, former 60 Minutes correspondent
By stark contrast, there is the 60 Minutes settlement. As reported:
Paramount Global and CBS agreed on Tuesday to pay President Donald Trump a sum that could reach north of $30 million to settle the president’s election interference lawsuit against the network. Trump will receive $16 million upfront. This will cover legal fees, costs of the case, and contributions to his future presidential library or charitable causes, to be determined at Trump’s discretion. . . There is an anticipation that there will be another allocation in the eight figures set aside for advertisements, public service announcements, or other similar transmissions, in support of conservative causes by the network in the future . . . CBS has [also] agreed to update its editorial standards to install a mandatory new rule. Going forward, the network will promptly release full, unedited transcripts of future presidential candidates’ interviews. People involved in the settlement talks have referred to this as the “Trump Rule.”
A $30 million dollar payout plus a measure of editorial control: That was the deal Paramount agreed to in a defamation case it could have readily won.
So why the on-bended-knee compromise? One answer, “Paramount's controlling shareholder Shari Redstone reportedly pushed for the settlement in hopes of paving the way for Trump’s FCC to approve a long-planned, lucrative merger with David Ellison’s Skydance Media.”
According to one report, the “Paramount-Skydance merger has triggered its second 90-day extension after failing to close on Monday. The $8 billion deal, which was first brokered a year ago, remains under review by the Federal Communications Commission due to a required transfer of broadcast licenses.”
Here again, a certain pragmatism is defended in the name of financial well-being — i.e., hoped-for government approval of the merger deal. But such “pragmatism” is grounded on an ill-founded expectation that (a) the merger deal will be approved, and (b) that there will be no further government interference with editorial control.
Most recently in a flimsy report on antisemitism at Harvard, the Trump administration has been weaponizing discrimination claims to remake the country’s universities. How can they fight back?
In recent days the Trump administration has ramped up its attacks on higher education. On June 26 the Justice Department announced that it is investigating the University of California system on the grounds that its pursuit of ethnic and racial diversity in hiring, promotion, and training could amount to discrimination. Over the weekend, the administration reportedly forced the president of the University of Virginia, James Ryan, to resign. (Speaking on Face the Nation on Sunday, Virginia senator Mark Warner alleged that Trump’s Justice Department — which is currently investigating UVA’s diversity, equity, and inclusion initiatives — had impressed upon Ryan “that if he didn’t resign on a day last week, by five o’clock, all these cuts would take place…. It was that explicit.”) Then, on Monday, the Office of Civil Rights (OCR) of the Department of Health and Human Services announced that Harvard had violated antidiscrimination law by responding inadequately to alleged antisemitism on campus in connection with protests against Israel’s war in Gaza.
David Cole
The OCR report on Harvard — thirty-four pages, with a twenty-three-page appendix — inadvertently reveals how baseless and opportunistic these attacks are. Legally speaking, the report is an embarrassment. It contains no sign that the OCR seriously investigated the factual circumstances underlying even a single complaint of in-person discrimination or harassment to determine its veracity. Instead the office seems to have simply taken every complaint, even anonymous ones, at their word—an approach that it would never adopt toward, say, an allegation of sexual harassment.
[. . .]
Tolerating pro-Palestinian protests is not only not illegal under federal law — it is the university’s right as an institution protected by the First Amendment Amendment. If Harvard is to stay true to its forthright and, yes, historic stand for academic freedom — and continue leading the charge against Trump’s unconstitutional attack on higher education — it should reject any settlement that allows the administration to dictate the ideological terms of its hiring, its admissions, its speech policy, and what its faculty teach. Harvard cannot agree to change these core elements of university life without forfeiting the first principle of academic freedom: that under our First Amendment such decisions are its alone — not Donald Trump’s.
Woodhull Foundation video exchange on FSC v. Paxton
“Donald Trump is in a category unto himself in terms of the breadth and depth of his attacks, using every possible instrument, not only jaw-boning (that was Biden’s main approach), but civil lawsuits and invoking the power of every single agency (something like 20 different agencies), bringing defamation lawsuits, [and] going after institutions in civil society that traditionally have been mainstays in support of free speech.” – Nadine Strossen
Creative video of ‘five freedoms’
Roderick Bradford, “Five Freedoms,” The Truth Seeker (July 7)
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned order of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito & Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
Last scheduled FAN
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE.
Thanks for including a link to the panel I moderated with Nadine Strossen and Brandi Kruse.