TRUMP SUES THE WALL STREET JOURNAL AND ITS OWNERS—A DIFFICULT ROAD AHEAD
INTRODUCTION
Last week the Wall Street Journal took the low road and published a story describing what purported to be a birthday greeting to Jeffrey Epstein in 2003 from then-citizen Trump that took the form of a letter or card that had a stick figure with lady parts and some lines of text that said “Happy Birthday” and the line, among others, “…and may every day be another wonderful secret.” One of the defendants, which includes two WSJ reporters, is Rupert Murdoch himself, whose conglomerate owns the WSJ. The story has shadowy roots, and it is not clear whether the letter itself was obtained and examined or if it was described by someone who had access. It purportedly was part of a birthday album that contained similar greetings. My guess (and opinion) is that this may be the work of Ghislane Maxwell’s attorney, who is embroiled in a fight that is going to the Supreme Court over the scope of Epstein’s sweetheart deal with the Obama Justice Department. Jeffrey Epstein was the beneficiary of a Non-Prosecution Agreement when he was simultaneously being pursued by the States Attorney in Florida as well as the United States Attorney’s Office for the Southern District of Florida. He was able to combine all matters into one plea, and the other charges were dropped. It also established that his “co-conspirators” could not be further prosecuted. Maxwell claimed to be covered by this. She has filed an appeal to the Supreme Court to be relieved of her 20-year sentence and conviction and has lost in every court. Trump’s DOJ has opposed her appeal by asking the Supreme Court to not review it. This document may or may not have been the subject of a sealing order, but it was apparently “described” to the Wall Street Journal. The timing is fishy, and if it was meant to get back at Trump for either not pardoning Maxwell or resisting her appeal, it may fail in many ways. Trump vehemently denies that he sent it and is very strident in his objection. This suit throws down a gauntlet. A very sordid battle begins, and the law may not support the suit’s objective. Let’s read on.
NEW YORK TIMES V. SULLIVAN CONTROLS AND PUBLIC OFFICIALS HAVE A HEAVY BURDEN
In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court held that public officials may not prevail in a defamation action unless they can prove “actual malice.” That malice was described as being present when a defendant publishes a statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Court recognized that this strict standard would preclude recovery by some plaintiffs for erroneous and injurious statements but felt that some false statements must be tolerated to ensure “that debate on public issues [is] uninhibited, robust, and wide-open.”
This civil case will have a schedule of extensive discovery. The WSJ reporters will be compelled to explain their investigation into this letter and how they got access to its contents by whatever means and whether they recklessly disregarded evidence of falsity. They will have to be charged with actual or circumstantial knowledge that it was not from Trump’s hand and was not genuine. It appears that the document was not available to them and apparently was not the subject of forensic analysis. If they had it, did they do a handwriting analysis? Who described it in such detail? Was it the result of a jailhouse interview with Ghislane Maxwell, who has nothing to lose? Is she, a convicted felon, a reliable source if she was the source? She is desperate and has boasted that she is not “spending 20 years in prison” and had hoped for a Trump pardon. Are her words alone enough to establish a defense to an allegation of actual malice and reckless disregard for the truth on the part of the WSJ?
THE NEW YORK TIMES V. SULLIVAN COURT ESTABLISHED THE LEGAL STANDARD FOR PUBLIC OFFICIALS IN THE DEFAMATION CONTEXT THROUGH FIRST AMENDMENT HISTORY WITH JEFFERSON AND MADISON FRONT AND CENTER
In reversing an award of an Alabama jury finding that a public official had been defamed when he was accused of inciting violence against Black protestors who supported civil rights legislation in the early 1960s, the Supreme Court changed the rules for the ages. The plaintiff was a Police Commissioner and vehemently denied the allegations. The New York Times story was not attributed to him directly, but it was clear he was a target. Alabama law supported a legal standard for defamation that the Supreme Court ultimately found was not consistent with the First Amendment. In examining the history and tradition of the development of the First Amendment, the Court looked at the backlash against the Sedition Act of 1798, an historic aberration, as an example of a chill on speech that was inconsistent with the objectives of free discourse. The Court stated:
“This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at 258 et seq.; Smith, Freedom’s Fetters (1956), at 426, 431, and passim. That statute made it a crime, punishable by a $5,000 fine and five years in prison, “if any person shall write, print, utter, or publish . . . any false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress . . . , or the President . . . , with intent to defame . . . or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.” The Act allowed the defendant the defense of truth and provided that the jury were to be judges both of the law and the facts. Despite these qualifications, the Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of 1798, the General Assembly of Virginia resolved that it ‘doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the “Alien and Sedition Acts,”‘” passed at the last session of Congress … [The Sedition Act] exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto—a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.'” 4 Elliot’s Debates, supra, pp. 553-554.
Madison and Jefferson resolved in the General Assembly of Virginia that such a standard of “actual truth” was too rigorous to encourage the press at large from taking the measure of those in public office and that negligence in reporting was not enough to violate the First Amendment’s core goals in a free republic. The Court explained Madison’s reasoning.
“His premise was that the Constitution created a form of government under which ‘the people, not the government, possess absolute sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power and of power itself at all levels. This form of government was ‘altogether different’ from the British form, under which the Crown was sovereign and the people were subjects. ‘Is it not natural and necessary, under such different circumstances,’ he asked, ‘that a different degree of freedom in the use of the press should be contemplated?’ Earlier, in a debate in the House of Representatives, Madison had said, ‘If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.’ 4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said, ‘In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands. . . .’ 4 Elliot’s Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”
THE SUPREME COURT CONCLUDED THAT NEGLIGENT REPORTING IS NOT ACTIONABLE GIVEN THE FIRST AMENDMENT’S BROAD PROTECTIONS FOR THE PRESS
Many question the degree to which the WSJ vetted the source as well as the content, not having seen it apparently. Their defense will center on the quality of the source and perhaps other validating factors. “Truth” is not the standard. The cases and the New York Times opinion allow for a degree of error in favor of not chilling the right of free public discussion. To be sure, the Court concluded that the Times was indeed negligent, but that did not carry the day:
“…there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times’ own files. The mere presence of the stories in the files does not, of course, establish that the Times ‘knew’ the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times’ policy of rejecting advertisements containing ‘attacks of a personal character’; their failure to reject it on this ground was not unreasonable. We think the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.”
CONCLUSION
Trump does not sit still for attacks. He has beaten back venomous lawfare and engaged in the greatest political comeback of all time. The defamation suit is a gamble. It will subject him to a deposition as well—remember Clinton v. Jones? It may open more sordid details as Ghislane Maxwell, a horrific human who took money to pimp for a child predator, tries to leverage herself out of prison by saying whatever is necessary. Is she the source? The suit does nothing to put Epstein in the rearview mirror and may well do more harm than good. The legal issues present a tough road ahead for Trump’s team. Time will tell.
Mike Imprevento
July 21st, 2025
