from is ken,-charles-harder-a-good-lawyer? department
By way of disclosure I will mention that (as you may know) Charles Harder was the lawyer who represented Shiva Ayyadurai in his lawsuit against us, and who has a decently long history of threats and lawsuits against media properties – some that have been more successful than others. Harder appears to have used his reputation for killing Gawker to attract increasingly prominent clients, on whose behalf he has sent numerous laughable threatening letters trying to silence blatantly protected speech, from Roger Ailes to Harvey Weinstein and more. by Donald Trump. I’ll leave it to the reader to determine if you see a trend in some of Harder’s clients and the representation he provided to them.
Apparently, the president still employs Harder. Late last week, he sent what has to be one of the most ridiculous threatening letters I’ve seen (and that’s saying something) to CNN promising to sue the company for his coverage.” biased” of Trump’s impeachment process. Everything about the letter is pretty crazy, especially coming from a president whose fans like to claim he supports free speech. He does not do. And Harder’s ridiculous letter makes that clear. The letter does not claim libel (which would be laughable in itself) but a rather…let’s say “unique”…interpretation of the “truth in advertising” aspects of the Lanham Act to argue that its coverage of the President does not match. with its “fair and balanced” promises.
Does your website expressly state to the public, in writing, that you are “journalists”, ? ?seekers of truth,? ?United by a mission to inform, engage and empower the world,? and you ? excellence in journalism and [your] some products.? See https://www.CNN.com/About (emphasis added). Your slogan is “The most trusted name in the news”. Your Facebook account claims you are ?widely known to be? the most trusted source of news and information.? Your presenter, Don Lemon, said on June 6, 2019, as a keynote speaker on the Financial Times Live Future of News: “We don’t pretend to be a liberal network, we’re a news network? we have a commitment to truth and facts, which has really been paramount, especially always at CNN. ? Mr. Zucker said in an interview with Variety, published August 2, 2016: ?[O]your look, unlike the others?, is really fair and balanced.? (Emphasis added.)
The letter goes on to cite the Society of Professional Journalists’ Code of Ethics, saying CNN violates them. It’s silly on many levels. First of all, Harder seems to ignore a key element of this code of ethics which explicitly states:
The SPJ’s code of ethics is a statement of constant principles supported by additional explanations and position papers (on spj.org) that deal with the evolution of journalistic practices.
It is not a set of rules, but rather a guide that encourages everyone who engages in journalism to take responsibility for the information they provide, regardless of the medium. The code should
be read as a whole; individual principles should not be taken out of context. It is not, and cannot be under the First Amendment, legally enforceable.
Yet Harder is acting like it’s some sort of legally binding document that sort of overrides the 1st Amendment. Which is weird.
From there, Harder cites a new video from notorious deceivers Project Veritas as evidence that CNN is violating these ethical rules that aren’t laws, and that it’s not at all clear that they are actually violating them in the first place. Much of the complaint revolves around whether or not CNN staff are “biased” against the president, and whether or not he lets opinion journalism show up in his “news” coverage.
Of course, this is all particularly hilarious because, as bad as CNN might be on this front, the same would doubly apply to the president’s favorite TV news channel, Fox News, whose own motto is famous (although hilarious) “Fair and Balanced”. ” when it is anything but, and took a notoriously contradictory position with the previous administration. Keep that in mind as you read this next line in Harder’s letter:
Never in the history of this country has a president been subjected to such a sustained barrage of unjust, baseless, unethical, and illegal attacks by the so-called “mainstream.” news, like the current situation.
One can easily argue that this is not even true when compared to the previous administration and Fox News. And, of course, there is a long, long history of media targeting opposing presidents (including being accused (perhaps overly) of being responsible for the assassination of President McKinley). The idea that CNN’s coverage of the president is somehow unique in history is hilarious and unsupported by reality.
As for the actual legal claims, they are vague, but totally absurd:
Your actions violate Lanham law (15 USC § 1051 et seq.), among other applicable laws, by constituting false statements to the public, your advertisers and others. Accordingly, my clients intend to take legal action against you, seeking compensatory damages, treble damages, punitive damages, injunctive relief, reimbursement of legal costs and all other legal and equitable remedies available, to the maximum extent permitted by law.
As well-known and respected attorney Ted Boutrous said on Twitter, this whole letter is silly:
This is an absolutely ridiculous letter. No serious lawyer would ever dream of sending such a frivolous letter making such an unfounded threat. https://t.co/omdWCE50fv
— Ted Boutrous (@BoutrousTed) October 18, 2019
CNN’s response to the letter was quite short and succinct:
“This is nothing more than a desperate publicity stunt and does not deserve a response,” CNN said in a statement.
Exactly. While Harder’s letter promises a lawsuit over it, it wouldn’t be surprising if no such lawsuit materializes, as he’s an almost guaranteed loser. As law professor Alexandra Roberts pointed outalthough Harder’s claims to the Lanham Act are not at all clearly stated, it is likely (especially given the context of the rest of the letter) suggesting a “false publicity” allegation, but for this to be legitimate he would have to to show commercial harm to President Trump, which would be… totally something to try.
Separately, Roberts makes another important point:since the letter isn’t even a standard ‘cease and desist’ threatening letter, but instead includes a statement about anticipated legal action, CNN (if it chooses) could actually go into justice and seek declaratory judgment on this issue, effectively forcing Trump/Harder to explain to the court any ridiculous legal theory they have, almost certainly to get her laughed out of court. It looks like CNN won’t bother to do this, but it would certainly be fascinating to watch.
Filed Under: 1st amendment, bias, charles hard, coverage, donald trump, false advertising, free speech, journalism, lanham act, news