Trump's Brief Against the New York Times: A Long Press Release that Mangles "Actual Malice"

The brief for Donald Trump against the New York Times reads like a long press release. It says little to show the falsity of the factual statements it identifies, and mainly praises Trump. Among the many examples: in its second paragraph it states that in the 2024 election “President Trump secured the greatest personal and political achievement in American history.” Or from paragraph 12:

Thanks solely to President Trump’s sui generis charisma and unique business acumen, “The Apprentice” generated hundreds of millions of dollars in revenue, and remained on television for over thirteen years, with nearly 200 episodes. “The Apprentice” represented the cultural magnitude of President Trump’s singular brilliance, which captured the zeitgeist of our time.

Beyond that, what jumped out at me is the brief’s repeated references to the subjective “malice” that the brief says the defendants have toward Trump. As every law student who has taken a First Amendment class knows, “actual malice” in New York Times v. Sullivan is a term of art – the Court has repeatedly made clear that it is an objective standard that focuses on whether the defendant was reckless about the possible falsity of a factual claim, and not on the defendant’s hatred, ill will, or enmity. But the brief’s references to actual malice focus on subjective hostility to Trump. For example, paragraph 117 begins:

Defendants’ actual malice manifested in numerous ways. Defendants launched investigations into President Trump, his family, and his businesses for the express purpose of harming all three.

In the claims for relief, the brief says that the defendants were aware of falsity but emphasize subjective dislike of Trump. Paragraphs 139 and 153 both say:

The statements were published by Defendants with actual malice, as part of a long term pattern, with oppression and fraud in that they were aware at the time of the falsity of the publication and thus, made said publications in bad faith, out of hatred and ill-will directed towards President Trump without any regard for the truth.

I assume that the lawyers know that judges who care about the law will focus on the objective standard as laid out by the Supreme Court. So why the focus on hatred and ill will? It’s possible they think this will help persuade the public, but it’s hard to imagine that many members of the public (other than Volokh Conspiracy readers!) will learn anything about this brief, much less care. Maybe they believe that the judge who will hear this case is likely to be a political hack who will like the invocations of ill will, but even then an ordinary brief seems like the smarter move, as it would give a political hack more cover to be political. Maybe they think this will persuade journalists, but journalists who are not ardent Trump supporters will likely call lawyers or law professors and be told that actual malice is an objective standard.

My guess is that the answer is tied to the lavish praise of Trump I noted at the beginning of this post: I think the brief centrally has an audience of one (Trump), and more broadly his hardest core supporters. It’s not written to persuade, but instead to affirm – that Trump is the greatest and that his opponents are deranged (from paragraph 107: “Defendants baselessly hate President Trump in a deranged way”). So maybe it reads like a press release because it is a press release – to the most devoted devoted sliver of his base.

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