J. Ann Selzer – Media Nation

Despite a shameful ‘60 Minutes’ settlement, the Paramount-Skydance merger is not a sure thing

Shari Redstone speaking at a Committee to Protect Journalists event. Photo (cc) 2022 by CPJ photos.

Given how long negotiations were dragged out, there was some reason to hope that Paramount Global wouldn’t give in and settle Donald Trump’s bogus lawsuit claiming that “60 Minutes” had deceptively edited an interview with Kamala Harris last October.

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In the end, Trump got what he wanted. Paramount, CBS’s parent company, will settle the suit for $16 million. If you’re looking for one tiny reason to be hopeful, the settlement did not come with an apology. In agreeing to pay off Trump, Paramount’s major owner, Shari Redstone, will now presumably find smooth sailing through the regulatory waters in selling her company to Skydance Media. Skydance, in turn, is headed by David Ellison, the son of Oracle co-founder Larry Ellison, a friend of Trump’s.

NPR media reporter David Folkenflik has all the details. What’s clear is that this may well be the end of CBS News as a serious news organization. Just the possibility of a settlement has brought about the resignations of top executives as well as criticism from “60 Minutes” correspondent Scott Pelley. As recently as Monday, media reporter Oliver Darcy revealed that all seven “60 Minutes” correspondents had sent a message to their corporate overlords demanding that it stand firm. Murrow weeps, etc.

What I want to note, briefly, is that there are still two complications that Paramount and Skyline must contend with before wedded bliss can ensue.

The first is a threat by U.S. Sens. Elizabeth Warren, D-Mass., Ron Wyden, D-Ore., and Bernie Sanders, I-Vt., to launch an investigation into whether the payoff amounts to an illegal bribe. Given that every legal and journalistic expert who’s looked at the case believes the editing of the Harris interview was ordinary and unremarkable (among other things, “60 Minutes” edited out a clip of Harris complaining about her hay fever), that investigation might yield some headlines at least.

“Paramount appears to be attempting to appease the Administration in order to secure merger approval,” the three said in a May press release issued by Warren’s office. They added: “If Paramount officials make these concessions in a quid pro quo arrangement to influence President Trump or other Administration officials, they may be breaking the law.”

The second is a threatened shareholder lawsuit by the Freedom of the Press Foundation. In a May statement, the organization’s director of advocacy, Seth Stern, cited the three senators’ possible investigation and said this:

Corporations that own news outlets should not be in the business of settling baseless lawsuits that clearly violate the First Amendment and put other media outlets at risk. A settlement of Trump’s meritless lawsuit may well be a thinly veiled effort to launder bribes through the court system.

In this morning’s newsletter from CNN media reporter Brian Stelter, the foundation is reported to be moving ahead with its plans: “The group’s lawyers are huddling today, I’m told. A spokesperson said ‘Paramount’s spineless decision to settle Trump’s patently unconstitutional lawsuit is an insult to the First Amendment and to the journalists and viewers of “60 Minutes.” It’s a dark day for Paramount and for press freedom.’”

The Paramount settlement follows Disney’s disastrous and unnecessary $15 million settlement of a suit brought by Trump over a minor wording error by ABC News anchor George Stephanopoulos in describing the verdict against Trump in the E. Jean Carroll civil case. Stephanopoulos said Trump had been found to have “raped” Carroll, whereas the technical legal term was “sexual abuse.”

Trump’s claim failed on two grounds: What Stephanopoulos said was substantially true, and there was no evidence that the anchor had deliberately or recklessly mischaracterized the outcome of the case. But no matter. Disney settled anyway.

So far, at least, Gannett is holding firm in Trump’s suit against The Des Moines Register and pollster Ann Selzer over a survey that showed Trump trailing Harris in the ~~Buckeye~~ Hawkeye State (which he ended up winning easily) several days before the 2024 election.

Correction: Like the great Boston Brahmin writer Cleveland Amory, I regarded “the West” as anything west of Dedham. So, yes, Iowa is the Hawkeye State. I’m fixing that here and in Tuesday’s item as well.

Trump tries to game the legal system in his bogus Iowa lawsuit; plus, a ‘60 Minutes’ update

For a brief moment Monday, it looked like Donald Trump had given up on his ridiculous lawsuit against The Des Moines Register and pollster Ann Selzer.

You may recall that Trump claimed they had committed consumer fraud because of a poll taken just before Election Day showing Kamala Harris with a 3-point lead in the Hawkeye State. Notwithstanding Selzer’s sterling reputation, Harris ended up losing Iowa by 13 points, which is about what you’d expect. She was wrong, and the error may have hastened her retirement, but the notion that she put out a false poll to help Harris is transparently ludicrous.

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Well, Monday’s good news didn’t last. It turns out that Trump withdrew his suit from the federal courts and refiled it in state court one day before an Iowa anti-SLAPP law was scheduled to take effect, William Morris reports for the Register. SLAPP stands for “strategic lawsuits against political participation,” and it’s designed to give judges a reason to throw out garbage suits such as Trump’s. No such luck since Trump beat the deadline.

This isn’t the first time Trump has sought to have his Iowa case heard in state court. Apparently his lawyers believe the federal courts are unlikely to tolerate his foolishness. To its credit, the Register’s corporate owner, Gannett, has hung tough. A spokesperson for the paper, Lark-Marie Anton, said in a statement:

After losing his first attempt to send his case back to Iowa state court, and apparently recognizing that his appeal will be unsuccessful, President Trump is attempting to unilaterally dismiss his lawsuit from federal court and refile it in Iowa state court. Although such a procedural maneuver is improper, and may not be permitted by the court, it is clearly intended to avoid the inevitable outcome of the Des Moines Register’s motion to dismiss President Trump’s amended complaint currently pending in federal court.

The Foundation for Individual Rights and Expression, which is representing Selzer, said on social media that Trump’s attempt to move the case to state court was “a transparent attempt to avoid federal court review of the president’s transparently frivolous claims,” according to The Washington Post.

Meanwhile, there have been some developments in one of Trump’s other legal attempts to intimidate the press. According to media reporter Oliver Darcy, all seven correspondents at CBS News’ “60 Minutes” have sent a message to their corporate owner, Paramount, demanding that it stand firm in fighting Trump’s lawsuit over the way the program edited an interview with Harris last October. Darcy writes:

They pointedly expressed concern that Paramount is failing to put up a fierce and unrelenting fight in the face of Trump’s lawsuit over the program’s Kamala Harris interview, which has been widely denounced by the legal community as baseless, according to the people familiar with the matter. They said Trump’s allegations against the storied program are false and ripped his lawsuit as baseless. And they warned in no uncertain terms that if Paramount were to settle with Trump, it will stain the reputation of the company and undermine the First Amendment.

Trump is claiming consumer fraud in a Texas federal court under the state’s Deceptive Trade Practices Act, alleging that “60 Minutes” edited its interview with Harris to make her appear more coherent, thus helping her campaign. “60 Minutes” has defended the editing as normal and routine. The interview has been nominated for an Emmy in the editing category, no doubt to send a message to the White House.

Unfortunately, Darcy reports that Paramount continues to lurch toward a settlement with Trump in order to pave the way for federal approval of a merger with Skydance Media.

Despite Trump’s attacks on freedom of the press, the Sullivan decision’s libel protections appear to be safe

Justice Clarence Thomas. Public domain photo via Wikimedia Commons.

Donald Trump may find that there are limits to how far he can go in tearing down the First Amendment’s guarantee of a free press. Adam Liptak reports in The New York Times (gift link) that the U.S. Supreme Court doesn’t seem inclined to revisit the libel protections of New York Times v. Sullivan, writing:

[I]t was notable that just five days before President Trump took office last month, the Supreme Court seemed to go out of its way to signal that it is not ready to embrace one of his most dearly held goals: to “open up our libel laws” and overrule the Sullivan decision.

That signal came in the form of an approving aside in a routine decision by Justice Brett Kavanaugh for Sullivan’s requirement that public officials must offer “clear and convincing evidence” in order to win a libel case — a higher barrier than a “preponderance of the evidence,” that standard that applies in most civil cases.

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The heart of Times v. Sullivan, a unanimous decision handed down in 1964, is that public officials must prove “actual malice” in order to win a libel case. That is, they most show knowing falsehood or “reckless disregard” for the truth. Subsequent decisions extended the Sullivan standard to public figures and narrowed the definition of “reckless disregard.”

The decision was intended to shut down a wave of libel suits brought by racist Southern officials aimed at silencing coverage of the Civil Rights Movement. The Sullivan standard also enabled investigative reporting on matters such as the Watergate scandal, since publishers no longer had to worry that small, inadvertent errors would bring about financial ruin.

Press-freedom advocates have been holding their breath since Justice Clarence Thomas wrote that he would, if given the chance, overturn the Sullivan decision and Justice Neil Gorsuch said he favored severely curtailing it. As I wrote for GBH News in 2021:

What seems impossible today may become reality in the not-too-distant future. Changes to libel protections that we had long taken for granted are starting to look inevitable, especially in the hands of a Supreme Court built by Trump and Mitch McConnell.

But maybe Sullivan is secure, at least for now. “All of this suggests that there remain only two votes to overturn the Sullivan decision,” Liptak writes, “well short of the four it takes to add a case to the court’s docket, much less the five required to prevail on the merits.”

Still, threats remain. Liptak observes that numerous challenges to Sullivan, citing Thomas and Gorsuch, have been filed in the past few years. Just last week, casino mogul Steve Wynn filed an appeal in his ongoing libel suit against The Associated Press and asked that Times v. Sullivan be overturned. Howard Stutz of The Nevada Independent quotes David Orentlicher, a law professor at the University of Nevada at Las Vegas, who says:

This would be a dangerous time to revisit the protection of the free press. Unfortunately, we have an administration that has decided to target the press and others who write critical commentary. There is a blurring of lines between government officials and private persons who have power. This is exactly the wrong time to weaken the protection of the press.

Moreover, none of this does anything to stop deep-pocketed libel defendants such as ABC and possibly CBS from giving in to bogus suits filed by Trump in order to advance their business interests. So far, at least, the Des Moines Register and its parent company, Gannett, are holding firm in the face of Trump’s most ridiculous lawsuit — that they somehow engaged in “consumer fraud” by publishing the results of a poll that turned out to be way off the mark. The pollster, J. Ann Selzer, is being sued as well. Trump has been joined by a right-wing organization called the Center for American Rights, as Robin Opsahl reports for the Iowa Capital Dispatch.

Perhaps a signal from the Supreme Court that the protections of Times v. Sullivan remain secure will serve to stiffen the backbone of news organizations and their parent companies. If they’re not willing to fight for press freedoms that they already have, then the Sullivan decision is worth very little.