Trump Campaign Threatens Legal Action over an Ad

First of all, here is the ad in question.  It’s just 30 seconds.

The ad is being run by a group called Priorities USA, a superPAC.  Reminder:  A PAC is a political action committee that raises and donates money to campaigns; a superPAC operates independently of any candidates’ official campaign funds and organizations, and thus is not subject to limits on how much it can raise or spend.  But a superPAC has the same goal as an official campaign; in this instance, the goal of Priorities USA is victory for Joe BIden (the likely nominee) over Donald Trump.

I’ll get to the legal threat in a moment, but first, I have another observation to make.  The ad is being shown in Florida, Wisconsin, Michigan, Pennsylvania, and Minnesota, and they’re planning to expand it into Arizona.  This illustrates that there is an ongoing shift of which swing/battleground states campaigns focus on.  Back in 2012, Ohio was getting a lot more attention, and not so much Minnesota.  As I’ve noted before, it’s Wisconsin, Michigan, and Pennsylvania that are being treated as the leading battleground states this time around.

Okay, now about the threat of legal action:  The Trump campaign has sent a cease-and-desist letter (here’s the full text of that letter) alleging that the use of the recording of Trump saying “this is their new hoax” is misleading, because it implies that Trump called the coronavirus itself, when all he was really calling a hoax was the Democrats’ way of politicizing it and accusing Trump of inaction.  (The letter has the full Trump quotation that that line came from, as well as citations of media sources affirming that Trump never called the virus itself a hoax.)

If this were a libel suit, the relevant case law would be New York Times v. Sullivan (1964), which says that when a public figure sues a news organization for defamation, whether for a news article or an advertisement, the public figure must prove that the news organization acted with malice or with reckless disregard for the truth.  However, that isn’t what they’re threatening.  Rather, the Trump campaign is threatening action under FCC regulations that require TV stations to refrain from knowingly broadcasting misleading information.

One point that needs to be made clear is that while a superPAC, Priorities USA, made the ad, it’s the individual TV stations that are getting the cease-and-desist letter.  Priorities USA isn’t backing down, but some TV stations may.  An important thing to remember is that threat of legal action can lead the receiving party to back down for fear that the mere cost of fighting it could be too much to bear, even with a good outlook for eventual victory in the courtroom.

Article in, March 26, 2020

Editorial in Slate, March 26, 2020, sounding alarm for freedom of the press

Again, the cease-and-desist letter, for the Trump point of view

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