Trump’s Lawyer Sues BuzzFeed, but What Does That Mean in a Post-Gawker Media Landscape?

Anything from a nuisance to an existential threat

Getty Images, BuzzFeed

On Jan. 9, Michael Cohen—President Donald Trump’s personal lawyer—filed a pair defamation lawsuits against BuzzFeed and research firm Fusion GPS for publishing a document alleging that Trump’s presidential campaign had unsanctioned meetings with Russian operatives.

Last year, BuzzFeed published a 35-page dossier that “includes specific, unverified and potentially unverifiable allegations of contact between Trump aides and Russian operatives, and graphic claims of sexual acts documented by the Russians.” The fact that the allegations are an unverified caveat is where the lawsuit rests. 

Media lawsuits are not uncommon, but in a post-Gawker media landscape, lawsuits—particularly well-funded ones—can take the wind out of a company.

When Peter Thiel funded Terry Bollea’s (a.k.a. Hulk Hogan’s) lawsuit against the now-defunct media company, it was predicated on salaciousness: a sex tape. Gawker posted two minutes of the tape, including 10 seconds of Hogan having sex with Heather Clem. Hogan sued for copyright infringement in federal court, seeking a temporary injunction, which was denied by the U.S. district judge. Hogan’s legal team changed strategy and filed in state court (Florida), which granted the injunction. The case went to trial, with Gawker arguing that running the video was protected by the First Amendment and that “awarding Hogan a victory would enable celebrities and public figures to punish the press for reporting things they didn’t like,” according to the The Washington Post.

Gawker, as we know, lost. A Florida jury awarded Hogan $140 million; Gawker was forced to sell (Univision gobbled up the digital media empire for $135 million).

Cohen’s defamation suit against BuzzFeed could be anything from a nuisance to an existential threat. The dossier is lewd, like the Hogan tape, and there’s a much clearer journalistic and societal stake involved. However, legal experts say that might not even matter.

“The importance of this lawsuit is that it points out a deficiency in libel law—one of the few instances where settled libel law and good journalism diverge,” said George Freeman, executive director of the Media Law Resource Center. “Thus, good journalism would allow, if not dictate, publication of this dossier about a president-elect which had been given to the White House and to Congress (both of which had taken actions regarding it), especially with the caveat to readers that it had not been verified. It was newsworthy and a matter of public concern and debate.

“But, nonetheless, libel law rules make no allowances for its newsworthiness; if the publisher had serious doubts about its underlying truth, it could be in trouble for publishing these newsworthy developments. That puts a publisher on the horns of a dilemma.”

In a recent New York Times op-ed, BuzzFeed eic Ben Smith seemed to be getting in front of the lawsuit:

But a year of government inquiries and blockbuster journalism has made clear that the dossier is unquestionably real news. That’s a fact that has been tacitly acknowledged even by those who opposed our decision to publish. It has helped journalists explain to their audience the investigation into Russian influence on the 2016 election. And Mr. Trump and his allies have seized on the dossier in their efforts to discredit the special counsel leading the investigation, Robert Mueller.

Without the dossier, Americans would have found it difficult to understand the actions of their elected representatives and government officials. Their posture toward Mr. Trump was, we now know even more comprehensively than we did in January 2017, shaped by Mr. Steele’s report. The Russia investigation, meanwhile, didn’t turn out to be some minor side story but instead the central challenge to Mr. Trump’s presidency.

Media attorney Evans Anyanwu doesn’t buy BuzzFeed’s “newsworthiness wins the day” argument. In fact, he said that “any attorney allowing this [dossier] to be published is giving bad advice. It’s about clicks and readership.”

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