Federal Appeals Court — Including 5 Trump Nominees — Unanimously Rejects Trump’s Appeal in His ‘Big Lie’ Suit vs. CNN

Jacquelyn Martin, AP Photo

A federal appellate court unanimously rejected President Donald Trump’s appeal of the dismissal of his lawsuit against CNN over the use of the term “Big Lie” — and five of the judges were nominated by the president himself.

Trump sued CNN in 2022 in the U.S. District Court for the Southern District of Florida, seeking $475 million in punitive damages, complaining about the network’s use of the term “Big Lie” to describe Trump’s unfounded claims about the 2020 election being stolen and other comments aired on CNN.

In 2023, that lawsuit was dismissed with prejudice (meaning it cannot be amended and refiled) in an opinion written by Judge Raag Singhal, a Trump appointee, who wrote that rhetoric that aired on the network was opinion, not a false statement of fact, and therefore could not support a claim of defamation.

Singhal’s ruling was affirmed last November by a three-judge panel on the U.S. District Court of Appeals for the Eleventh Circuit that consisted of Judges Adalberto Jordan, an Obama appointee; Kevin Newsom, a Trump appointee; and Elizabeth L. Branch, also a Trump appointee. In that ruling, the panel held that the lawsuit was “meritless” and Singhal’s dismissal was proper, and expressly rejected Trump’s claims that “Big Lie” was a false statement of fact as “unpersuasive” (citations omitted):

Trump has not adequately alleged the falsity of CNN’s statements. Therefore, he has failed to state a defamation claim.

Trump’s other arguments are likewise meritless. He argues that the district court erred in limiting its analysis to the five defamatory statements that he listed in his complaint. According to Trump, the district court should have also analyzed the “more than sixty instances of defamation set forth in the Notice Letter to CNN” and the “nearly 7,700 instances in which CNN had defamed Plaintiff with the ‘Big Lie’ allegation.” Trump has not alleged that any of these “instances of defamation” refer to something other than CNN’s use of “Big Lie.” We have held that, by using “Big Lie” to describe Trump, CNN was not publishing a false statement of fact. Therefore, whether CNN used “Big Lie” one time or many is irrelevant to the question of falsity.

Trump appealed the ruling, filing a petition for a rehearing en banc, which means asking to have the matter heard again by all the court’s judges. The Federal Rules of Appellate Procedure explicitly state that “[r]ehearing en banc is not favored and ordinarily will be allowed only if” at least one of the specific criteria listed in the rule is met, including if the legal matter presents a “question of exceptional importance,” there is a conflict with a decision by the Supreme Court or another federal appellate court, or if there is a conflict with other decisions of that court and “the full court’s consideration is therefore necessary to secure or maintain uniformity of the court’s decisions.”

In order for a petition for rehearing to be granted, a majority of the judges on that court must agree to rehear the matter.

For this petition, Trump did not get a single judge on his side.

In the one-paragraph per curiam order entered by Judges Jordan, Newsom, and Branch (the same three-judge panel that previously affirmed the case’s dismissal), the court denied Trump’s petition for rehearing, citing the Federal Rules of Appellate Procedure and noting that “no judge in regular active service on the Court [had] requested that the Court be polled on rehearing en banc.”

The current composition of the active judges on the Eleventh Circuit Court of Appeals is a chief judge who was nominated by President George W. Bush, three judges who were nominated by President Barack Obama, two by President Joe Biden, and a total of five who were nominated by Trump (Newsom and Branch, plus Judges Britt Grant, Robert J. Luck, Barbara Lagoa, and Andrew Brasher).

New: The Mediaite One-Sheet "Newsletter of Newsletters"
Your daily summary and analysis of what the many, many media newsletters are saying and reporting. Subscribe now!