Michael Wolff’s Fire and Fury dropped like an atom bomb this month, effectively ending Steve Bannon’s career and contributing “Gorilla Channel” to the collective lexicon. One of the main drivers of the book’s massive launch – publisher Henry Holt & Co. has ordered 1.4 million hardcover copies – was the president’s outrage over the book’s unflattering portrait. Lawyers representing Trump sent a cease and desist letter demanding the book not be published. (The president’s order was such a coup for Wolff, purely in terms of moving product, that he openly wondered he should send thank you chocolates.) Henry Holt rejected the demand, spelling out exactly why in its own strongly-worded letter, but it’s worth dwelling on the unprecedented nature of Trump’s request and the legal principles underlying the publisher’s decision to ignore it.
To understand it all, Rolling Stone called up David Snyder, executive director of the First Amendment Coalition, and asked him to expand on just how about how batshit fucking insane, from a legal perspective, it is for a sitting U.S. president to try to censor publication of a book about himself.
Thanks for taking some time to chat. So, what are the chances the president’s claim holds up in court?
The threats to the publisher from [Trump lawyer] Charles Harder — the claims they assert there have the proverbial ice cube’s chance [of succeeding in court]. Prevailing on a defamation claim filed by a public figure – especially one of the status of the President of the United States – is an extremely arduous uphill climb. It’s hard to image a scenario where they prevail on a libel claim, but even more ridiculous than the assertion that the book libeled Donald Trump is the assertion that the book should not be published at all in the first instance.
Can you walk us, step-by-step, through the letter from Trump’s lawyer, and explain what they were trying to accomplish?
What that [letter] is arguing for and what it attempts to, what it threatens to achieve, although it has no force of law and isn’t really a direct attempt to do this, is to put in place is what as known in First Amendment law as a “prior restraint.” And those are virtually impossible to get in court – especially when you are talking about issues of heightened published interest, such as activities and statements by the President of the United States. The Supreme Court has described a prior restraint as the most serious and least tolerable infringement on First Amendment rights. In other words, if the government is going to get a court order preventing the publication of anything in the first instance, it has to be very, very serious. The most famous case in this area is the one that the movie The Post is about, and that is the Pentagon Papers case.
One of the reasons that case is so famous is the issues that the court was weighing there were national security versus the First Amendment. What the government asserted, and I don’t think this was a patently ridiculous claim, was that the publication of the Pentagon Papers would be a threat to national security, which is an interest of the highest order. And what the court in the Pentagon Papers decided was even given that extremely heightened interest that is national security a prior restraint wasn’t warranted there.
So, the assertion in the Harder letter that the book shouldn’t be published at all is sort of breathtaking and, wrong as a legal matter. For a sitting President to assert that a book shouldn’t be published is troubling, especially because the book is about politics.
You say “Especially because the book is about politics” — why is that?
One of the things the First Amendment protects, first and foremost, is political discourse. One of the main reasons the First Amendment is there is to ensure that there is as much discussion about public affairs, about electoral issues, about politics as possible; that there are as little restrictions on discussion of what our elected leaders are doing as humanly possible.
So for Trump to assert that the book shouldn’t be published and to say that he’s going to sue for libel — a threat like that in itself has a chilling effect. I think the chilling effect here is mitigated by the fact that most everyone recognizes the chances that Trump A, would sue and B, could prevail, are slim at best. But Trump has a long history of threatening lawsuits that he doesn’t actually bring, so I think a lot of people assume that there is not going to be a lawsuit here. But if there were, Trump would face a very steep, uphill climb to prove that he was defamed.
Hypothetically, what would Charles Harder have to prove in court about Michael Wolff to prevail on a defamation claim?
In order to prove the defamation claim, the plaintiff has to show A, that there was a false statement, B, that that false statement was damaging to the plaintiff’s reputation, and C,. that the plaintiff was damaged, and in this sense, “damaged” usually means financial – they were harmed in some [financially] quantifiable way. That’s a basic defamation claim.
The layer that’s added onto this is that a plaintiff who is a “public figure” — and that’s a term of law for First Amendment purposes – has to demonstrate that the defendant acted with quote-unquote “actual malice,” and actual malice is a legal term of art, which doesn’t mean what the term sort of implies. It doesn’t mean that they acted with ill will or that they acted with an intent to harm somebody. What it means is that the defendant knew what they were about to publish or say was false and they went ahead and did, said it anyway —or that they acted with reckless disregard for the truth. They had very good reason to know, or may have even actually suspected, that they what they were printing was false and they went ahead and published anyway. And that’s a very high bar to meet.
It takes a lot to demonstrate that somebody had knowledge of falsity and then went ahead published it anyway. It’s been done. One of the more famous ones is Carol Burnett sued the National Enquirer for a story that I think described Carol Burnett as being drunk in public. She, I believe, prevailed on that lawsuit, but that’s a rare exception.
Wolff includes a kind of extraordinary author’s note at the front of the book. In it, he writes, “Many of the accounts of what has happened in the Trump White House are in conflict with one another; many, in Trumpian fashion, are baldly untrue… Sometimes I have let the players offer their versions, in turn allowing the the reader to judge them.” Does writing something like that open him up to liability?
I actually haven’t read that author’s note, but I know that Harder called it out in the letter. Yes, that could present something of a challenge for Wolff’s or the publisher’s lawyers if it actually ended up in court. But keep in mind that just printing false information is not sufficient, especially where there’s a public figure who is the plaintiff — it would have to be false information, presented as true, that Wolff knew was false in order to meet that “actual malice” standard.
If it were the case that he knew the information was false and he presented it as truth and went ahead and published it anyway, yeah, that could potentially rise to some level.
If you were to say, “Jared Kushner is a jerk” that would be harmful to his reputation, but you wouldn’t even pass the first gate in a defamation analysis because it is not a statement that’s able of being proven true or false. If you said somebody committed murder, that is a factual statement; it’s not a statement of opinion.
There is one moment in the book where Wolff quotes Steve Bannon saying that Mitch McConnell cancelled a meeting with the President saying that he needed to get a haircut. Other reporters have since said that they had heard and tried to confirm that anecdote and were unable to because it didn’t actually happen. In a case like that, where its a direct quote from Steve Bannon, is that actionable?
The fact that something is in quotation marks doesn’t remove it from potential liability. Quoted statements can give rise to defamation liability. The first question I would ask is, is [the statement] defamatory? Does that harm Trump in any way? Is it harmful to his reputation? Setting aside whether it’s true or false, is it, even harmful to his reputation? That’s the essence of a defamation claim – that you said something that has a high likelihood of lowering the public’s opinion of you. But to just say that Mitch McConnell skipped out on a meeting because he had a haircut – and let’s assume that’s false – I don’t see how that’s defamatory. I don’t know the full context, maybe the right context that has some defamatory sting to it, but mere falsity isn’t enough.
Let’s assume, for argument’s sake, it was defamatory – what else would Trump’s lawyer have to prove?
What Trump would have to show is that Wolff actually knew that was false and ran and said it or printed it anyway. You would have to get an admission from Wolff that he knew it was false, or you would have to get emails or some other form of documentary evidence that shows that he knew it was false… The fact that reporters have said that they weren’t able to corroborate that doesn’t mean that at the time of his reporting or the time of publication, Wolff had that same knowledge.
One of the issues Trump’s lawyer, Charles Harder, raises in his letter is invasion of privacy. Harder was the lawyer who represented Hulk Hogan in his suit against Gawker for invasion of privacy. Is that part of a defamation suit or separate? Can you talk about the differences between them?
Hulk Hogan asserted that by publishing a video of him engaging in sexual acts with somebody, Gawker had invaded his privacy, so it’s a separate case of action. Defamation is a false and reputationally harmful statement. There are several types of invasion of privacy claims, but this relevant type of invasion of privacy is called “publication of true but private facts.” That means you publish something that is private about somebody and is not newsworthy – that was what the Hulk Hogan case turned on, or one of the things the case turned on.
Is that the type of invasion of privacy claim Harder is pursuing here?
There are several kind of aspects of the invasion of privacy tort. One is the publication of true but private facts, one is “intrusion upon seclusion,” which is a claim that a plaintiff can bring if you have invaded the personal space of the plaintiff, and then there’s “false light” and false light is often referred to as defamation’s little brother. It has the same basic sense of defamation in that it’s harmful to reputation, but it is rooted more in the idea that you publish something private about somebody. [Wolff’s lawyer Elizabeth McNamara] says that there is no such claim under New York law. I don’t know that that’s true, but… if they were to file in New York, if she’s right, there isn’t a claim.
But maybe a more fundamental point there is that the claim is rooted in privacy. The idea that the President of the United States has a claim or an expectation of any privacy in the imagination of his White House or his political campaign – I would say that’s a stretch at best.
One of the things that the publisher’s lawyer writes in her letter is “To the extent that the President disputes any statement, he has the largest platform in the world to say, to dispute it.” What’s the legal principle at work there?
There are two legal concepts that I can think of that that idea speaks to. And one is the public figure doctrine, this idea that public figures face an extra hurdle in proving a defamation or other claim is that they have the ability to address falsehoods directly by correcting the falsehood in the court of public opinion in a way that private individuals do not. In other words, they are less in need of court intervention because they have a platform by definition of a public figure status and contest false statements.
And, you know, one of the principles that underlies the First Amendment is it is better, when possible, to address false or harmful speech with more speech, rather than to get the state involved and to punish that kind of speech, or even more troubling, to prevent speech from going forward. So the idea that Trump has the loudest megaphone on the planet I think highlights why he’s the most public of public figures, and therefore faces an extremely uphill fight.
Any final thoughts you want to leave us with?
Just the idea that a sitting U.S. President would demand that a book about public affairs that addresses him not be published is really deeply disturbing, and I think it’s important to call that out. If Trump had actually gone into court and fought an injunction that would really have been a step too far because there’s just no way a court would award an injunction preventing the publication of this book. He didn’t do that, but I think it’s important to sort of not give him too much credit for that because by sending a letter that demands something not be published, he’s saber rattling in a way that I think is detrimental to the free flow of information, and oddly, it sort of has the opposite effect I think of what he intended — you know, sales of this book has now gone through the roof.