UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DONALD J. TRUMP FOR PRESIDENT, :

INC., :

:

Plaintiff, : Civil Action No.: 20-626 (RC)

:

v. : Re Document No.: 12

:

WP COMPANY LLC, d/b/a THE :

WASHINGTON POST, :

:

Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION TO DISMISS

I. INTRODUCTION

In this defamation action, Donald J. Trump for President, Inc. (the “Trump Campaign”) 

alleges that WP Company LLC d/b/a/ The Washington Post (the “Post”) defamed it in two Post 

articles published in 2019. Now before the Court is the Post’s motion to dismiss. Def.’s Mot. to 

Dismiss for Failure to State a Claim (“Mot.”), ECF No. 12. For the reasons described below, the

Court agrees with the Post that the Complaint fails to state a claim. Accordingly, it will grant the 

Post’s motion but dismiss the Complaint without prejudice. 

II. BACKGROUND

The two Post articles at issue were both published in June 2019 in the Post’s online 

opinion section, “The Plum Line.” See Greg Sargent, Trump just invited another Russian attack. 

Mitch McConnel is making one more likely., Wash. Post (June 13, 2019, 9:25 AM),

https://www.washingtonpost.com/opinions/2019/06/13/trump-just-invited-another-russianattack-mitch-mcconnell-is-making-one-more-likely/ [hereinafter “Sargent Article”]; Paul 
2

Waldman, Trump: I can win reelection with just my base, Wash. Post (June 20, 2019, 12:36 PM), 

https://www.washingtonpost.com/opinions/2019/06/20/trump-i-can-win-reelection-with-just-mybase/ [hereinafter “Waldman Article”].1 As relevant here, the Sargent Article discusses special 

counsel Robert Mueller’s investigatory report (the “Mueller Report”) into Russian interference in 

the 2016 U.S. presidential election:

Special counsel Robert S. Mueller III’s investigation concluded that Russia’s 

“sweeping and systematic” attack involved massive cybertheft aimed at one major 

U.S. political party and disinformation warfare designed to divide the country 

along racial and social lines.

Mueller also concluded that Trump and/or his campaign eagerly encouraged, tried 

to conspire with, and happily profited off of those efforts. Yet Mueller did not 

find sufficient evidence of a criminal conspiracy. 

Sargent Article at 4 (underlines in original). The word “concluded” in this passage hyperlinks to 

the publicly available Mueller Report. See N.Y. Times, Read the Mueller Report: Searchable 

Document and Index, N.Y. Times (Apr. 18, 2019), 

https://www.nytimes.com/interactive/2019/04/18/us/politics/mueller-report-document.html

[hereinafter “Mueller Report”]. The words “also concluded” in the passage hyperlink to an 

article in The Atlantic that discusses the Mueller Report. See Benjamin Wittes, Five Things I 

Learned From the Mueller Report, The Atlantic (Apr. 29, 2019), 

1 The Post appended all five documents discussed in this Opinion in its motion to dismiss. 

See Ex. A to Mot. (Sargent Article), ECF No. 12-1; Ex. B to Mot. (Waldman Article), ECF No. 

12-2; Ex. C to Mot. (Mueller Report), ECF No. 12-3; Ex. D to Mot. (Wittes Article), ECF No. 

12-4; Ex. E to Mot. (ABC Interview), ECF No. 12-5. For ease of reference, the Court will cite to 

each exhibit’s ECF pagination when discussing these documents. 

The Court will consider the Sargent and Waldman Articles and the Mueller Report 

because they are incorporated by reference in the Complaint. See Farah v. Esquire Mag., 736 

F.3d 528, 534 (D.C. Cir. 2013). The Court will also take judicial notice of the Wittes Article and 

ABC Interview because their authenticity is undisputed and each is hyperlinked to a challenged 

defamatory statement and thus “integral” to the Trump Campaign’s defamation claim. Kaempe 

v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); see also Shive-Ayala v. Pacelle, No. 21-cv-704, 

2022 WL 782412, at *2 n.1 (D.D.C. Mar. 15, 2022).
3

https://www.theatlantic.com/ideas/archive/2019/04/ben-wittes-five-conclusions-muellerreport/588259/ [hereinafter “Wittes Article”]. According to the Trump Campaign, the Sargent 

Article’s statement that the Trump Campaign tried to conspire with Russian efforts to interfere in

the 2016 U.S. presidential election is false and defamatory. Compl. ¶¶ 2–3, 13–14, 27. 

The second article at issue in this case is the Waldman Article, which was published on 

June 20, 2019. As relevant here, the Waldman Article discusses Trump’s 2020 reelection 

campaign strategy: 

The 2020 election will obviously be distinct in all kinds of ways we can’t yet 

anticipate. For instance, who knows what sort of aid Russia and North Korea will 

give to the Trump campaign, now that he has invited them to offer their 

assistance?

Waldman Article at 4 (underline in original). The word “invited” in this passage hyperlinks to 

an unedited transcript of an interview that ABC News conducted with Trump a week earlier at 

the Oval Office. ABC News, ABC News’ Oval Office interview with President Trump, ABC 

News (June 13, 2019, 12:57 PM), https://abcnews.go.com/Politics/abc-news-oval-officeinterview-president-donald-trump/story?id=63688943 [hereinafter “ABC Interview”]. 

According to the Trump Campaign, the Waldman Article’s statement that the Trump Campaign 

invited Russia’s and North Korea’s assistance in the 2020 election is false and defamatory. 

Compl. ¶¶ 4–5, 16–17, 27.

On March 3, 2020, the Trump Campaign sued the Post in this District, alleging one count 

of libel concerning the defamatory statements made in the Sargent and Waldman Articles. 

Compl. ¶¶ 24–31. The case was randomly assigned to then-Judge Ketanji Brown Jackson, who 

held oral argument on the Post’s fully briefed motion to dismiss. Min. Entry (Dec. 10, 2020); Tr. 

of Mot. Hr’g, ECF No. 18. Upon then-Judge Jackson’s confirmation to the D.C. Circuit, the case 

was reassigned to Judge Florence Pan. See Docket Entry (Oct. 1, 2021). Upon Judge Pan’s 
4

confirmation to the D.C. Circuit, it was randomly reassigned to this Court. See Docket Entry 

(Sept. 26, 2022). The Post’s motion to dismiss is ripe for decision. 

III. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain 

statement of the claim” in order to give the defendant fair notice of the claim and the grounds 

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) 

(per curiam). A court considering such a motion presumes that the complaint’s factual 

allegations are true and construes them liberally in the plaintiff’s favor. See, e.g., United States 

v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). Nevertheless, “[t]o survive a 

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff’s factual 

allegations “must be enough to raise a right to relief above the speculative level, on the 

assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 

550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements,” are therefore insufficient to withstand a motion to 

dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff’s legal conclusions as true, 

see id., nor must a court presume the veracity of legal conclusions that are couched as factual 

allegations, see Twombly, 550 U.S. at 555.

IV. ANALYSIS

The Court agrees with the parties that New York law governs this case. Mot. at 13–14; 

Pl.’s Mem. of P. & A. in Opp’n to Def.’s Mot. to Dismiss (“Opp’n”) at 3–4, ECF No. 13. 

“Federal courts sitting in diversity must apply the conflicts of law rules of the jurisdiction in 
5

which they sit.” Hourani v. Psybersolutions LLC, 164 F. Supp. 3d 128, 140 (D.D.C. 2016),

aff’d, 690 F. App’x 1 (D.C. Cir. 2017). For defamation suits in the District of Columbia, “[t]he 

weight of authority considers that the law to be applied is . . . [that of] the place where the 

plaintiff suffered injury by reason of his loss of reputation.” Weyrich v. New Republic, Inc., 235 

F.3d 617, 626 (D.C. Cir. 2001) (cleaned up) (citing Restatement (Second) of Conflict of Laws § 

150 (Am. L. Inst. 1971))). “A legal person’s principal place of business is the place where its 

reputation will usually be most grievously affected.” Restatement (Second) of Conflict of Laws 

§ 150 cmt. f; accord Mar-Jac Poultry, Inc. v. Katz, 773 F. Supp. 2d 103, 112 (D.D.C. 2011). 

Because the Trump Campaign’s principal place of business is in New York, Compl. ¶ 9, the 

Court will apply New York defamation law. “Under New York law a defamation plaintiff must 

establish five elements: (1) a written defamatory statement of and concerning the plaintiff, (2) 

publication to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special 

damages or per se actionability.” Palin v. New York Times Co., 940 F.3d 804, 809 (2d Cir. 2019)

(citations omitted).

Because state defamation law also implicates First Amendment protections, the Court 

will apply D.C. Circuit caselaw discussing limitations on state defamation law that “emanate” 

from the Constitution. Montgomery v. Risen, 197 F. Supp. 3d 219, 235 (D.D.C. 2016), aff’d, 875 

F.3d 709 (D.C. Cir. 2017). For example, where, as here, the Trump Campaign concedes that it is 

a public figure, Compl. ¶ 28, the Constitution requires it to “prove by ‘clear and convincing 

evidence’ that the speaker made the statement ‘with knowledge that it was false or with reckless 

disregard of whether it was false or not.’” Tah v. Glob. Witness Publ’g, Inc., 991 F.3d 231, 240 

(D.C. Cir. 2021) (quoting Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 589–90 (D.C. Cir. 2016)). 
6

The Court will proceed to consider whether the Trump Campaign has adequately pled a 

defamation claim against each of the Post articles. 

A. Sargent Article

According to the Trump Campaign, the Sargent Article’s statement that the Trump 

Campaign “tried to conspire with” Russian efforts to interfere in the 2016 U.S. presidential 

election is false and defamatory. Compl. ¶¶ 2–3, 13–14, 27. The Trump Campaign argues that

this statement is factual as opposed to non-actionable opinion. Id. ¶ 26. It further avers that this 

statement is false because the Mueller Report specifically concluded that there was insufficient 

evidence to charge any member of the Trump Campaign with criminal conspiracy. Id. ¶ 14. 

Finally, it argues that the Post acted with actual malice because it knowingly or recklessly chose 

to publish the Sargent Article despite being aware of the “extensively reported” and publicly 

available Mueller Report. Id. ¶ 6. 

The Post vehemently disagrees with these characterizations. It argues that the statement 

at issue in the Sargent Article is constitutionally protected opinion. Mot. at 19–21. The Post also 

claims that asserting the Trump Campaign “tried” to conspire with Russia is fully consistent with 

the Mueller Report and does not contradict the Mueller Report’s conclusion that there was 

insufficient evidence of a criminal conspiracy. Reply Mem. in Supp. of Def.’s Mot. to Dismiss 

(“Reply”) at 17, ECF No. 15. The Post further insists that the Complaint fails to allege actual 

malice because the Sargent Article includes information that cuts against the allegedly 

defamatory statement, and because its interpretation of the Mueller Report is a rational 

interpretation of an ambiguous government report. Mot. at 27–29. Finally, the Post argues that 

New York law’s “fair report privilege” insulates the Sargent Article from liability because its 

report of the Mueller Report is substantially accurate. Id. at 30–34.
7

The Court declines to address each of the parties’ arguments in detail, for it concludes 

that the Trump Campaign has failed to adequately plead actual malice. That failure alone 

warrants granting the Post’s motion to dismiss. See Arpaio v. Cottle, 404 F. Supp. 3d 80, 86 

(D.D.C. 2019) (dismissing defamation claim because “Plaintiff’s Complaint does not plead any 

facts to support the key element of actual malice”); Hourani, 164 F. Supp. 3d at 141 (dismissing 

the plaintiff’s defamation claims for failure to plausibly allege actual malice).

“The actual malice standard is famously ‘daunting.’” Tah, 991 F.3d at 240 (quoting 

McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996)). “A plaintiff must prove 

by ‘clear and convincing evidence’ that the speaker made the statement ‘with knowledge that it 

was false or with reckless disregard of whether it was false or not.’” Id. (citation omitted). Put 

another way, “the defendant must have made the false publication with a high degree of 

awareness of probable falsity,” or “must have entertained serious doubts as to the truth of his 

publication.” Id. (quoting Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 667

(1989)). To establish actual malice, “[t]he speaker’s failure to meet an objective standard of 

reasonableness is insufficient; rather the speaker must have actually ‘harbored subjective 

doubt.’” Id. (citation omitted). Thus, “even an ‘extreme departure from professional standards’

is insufficient to prove actual malice on its own.” Id. at 242 (citation omitted).

“[T]he D.C. Circuit has further fleshed out this inquiry, holding that to establish actual 

malice a plaintiff ‘must show, by clear and convincing evidence, that when the defendants 

published the alleged defamation[ ] they were subjectively aware that it was highly probable that 

the story was (1) fabricated; (2) so inherently improbable that only a reckless person would have 

put [it] in circulation; or (3) based wholly on an unverified anonymous telephone call or some 

other source that appellees had obvious reasons to doubt.” Risen, 197 F. Supp. 3d at 259 
8

(cleaned up) (quoting Lohrenz v. Donnelly, 350 F.3d 1272, 1283 (D.C. Cir. 2003)). “The actual

malice standard reflects the cornerstone First Amendment principle that ‘speech relating to 

public officials and public figures, as distinct from private persons, enjoys greater protection.’” 

Tah, 991 F.3d at 240 (quoting Jankovic, 822 F.3d at 584).

Here, the Trump Campaign fails to allege that the Sargent Article was published with 

actual malice. For starters, the Complaint is replete with conclusory allegations. See, e.g.,

Compl. ¶ 6. (“The Post was well aware at the time of publishing . . . that [the statement in the 

Sargent Article was] not true.”); id. ¶ 20 (“The Post clearly had a malicious motive, but more 

importantly acted with reckless disregard for the truth.”); id. (claiming that the Post “knowingly 

disregarded” “[t]he Mueller Report” and “[e]xtensive public information”). As the Trump 

Campaign knows, these “[t]hreadbare recitals of the elements of a cause of action” cannot 

survive a Rule 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 678; see Donald J. Trump for 

President, Inc. v. CNN Broad., Inc., 500 F. Supp. 3d 1349, 1357–58 (N.D. Ga. 2020) (dismissing 

defamation suit because allegations of actual malice were conclusory); Donald J. Trump for 

President, Inc. v. The New York Times Co., No. 152099/2020, 2021 WL 938979, at *2 (N.Y. 

Sup. Ct. Mar. 09, 2021) (same).

The Trump Campaign argues that the Post and Mr. Sargent’s political bias demonstrates

actual malice. Compl. ¶¶ 18–19. Not so. Assuming the Trump Campaign is correct that the 

Post has consistently supported Democratic presidential candidates and that Mr. Sargent has 

previously published a commentary critical of Trump, “[i]t is settled that ill will toward the 

plaintiff or bad motives are not elements of actual malice and that such evidence is insufficient 

by itself to support a finding of actual malice.” Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. 

Cir. 1987); see also Risen, 197 F. Supp. 3d at 263; CNN Broad., Inc., 500 F. Supp. 3d at 1357. 
9

The Trump campaign’s “breathtaking” theory of actual malice would “infer[] . . . actual malice

in a wide swath of investigative journalism that turns out to be critical of its subject.” Tah, 991 

F.3d at 243. That is not the law. The Trump Campaign’s “unadorned claim of animus and bias 

cannot save [its] deficient pleading.” Cottle, 404 F. Supp. 3d at 85.

Not only has the Trump Campaign failed to plead sufficient factual allegations supporting 

an inference of actual malice, the context of the alleged defamatory statement suggests the 

absence of actual malice. Notably, after claiming that the Mueller Report concludes that the 

Trump Campaign “tried to conspire with” Russian efforts to interfere in the 2016 U.S. 

presidential election, Mr. Sargent continued in the very next sentence, “Yet Mueller did not find 

sufficient evidence of a criminal conspiracy.” Sargent Article at 4. Those two statements appear 

in the same paragraph, and read together, the second statement is plainly intended to qualify the 

first statement. The Sargent Article’s inclusion of the qualifying statement is the kind of action 

that dispels actual malice. See Jankovic, 822 F.3d at 594 (finding that a “disclosure” which cuts 

against author’s perspective “tend[s] to dispel any claim of actual malice”); Lohrenz, 350 F.3d at

1286 (“Such admissions, i.e., reporting perspectives at odds with the publisher’s own, ‘tend[ ] to 

rebut a claim of malice, not to establish one.’” (citation omitted)). The editorial choice here does

not resemble the requisite knowledge or recklessness associated with, for example, a fabricated 

story or reliance on an unverified anonymous telephone call. See Risen, 197 F. Supp. 3d at 259. 

The Wittes Article in The Atlantic also undermines the Trump Campaign’s allegation of 

actual malice. The Trump Campaign suggests that the Mueller Report’s conclusions “are a 

matter of widely disseminated public record,” Compl. ¶ 20, as if the public record could selfevidently show that the Sargent Article’s statement is false. But the Wittes Article, which the 

alleged defamatory statement in the Sargent Article hyperlinks, states this “key point” about the
10

Mueller Report: “If there wasn’t collusion on the [Russian] hacking, it sure wasn’t for lack of 

trying.” Wittes Article at 7. The Wittes Article is consistent with the allegedly defamatory 

statement and undermines the notion that the Post was “subjectively aware” that its statement 

was “so inherently improbable that only a reckless person would have put [it] in circulation.” 

Risen, 197 F. Supp. 3d at 259 (quoting Lohrenz, 350 F.3d at 1283); see Cottle, 404 F. Supp. 3d at

85. Thus, the Trump Campaign has failed to adequately plead actual malice with respect to the 

Sargent Article.

2

 

B. Waldman Article

The Trump Campaign’s defamation claim concerning the Waldman Article fares no 

better because the statement at issue there is non-actionable opinion. Under New York law, 

“[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter 

how offensive, cannot be the subject of an action for defamation.” Mann v. Abel, 885 N.E.2d 

884, 885–86 (N.Y. 2008) (citation omitted).3 The New York Court of Appeals has drawn a 

distinction between “pure” opinions, which are protected, and “mixed” opinions, which are not. 

See Davis v. Boeheim, 22 N.E.3d 999, 1004 (N.Y. 2014). “A pure opinion may take one of two 

forms. It may be ‘a statement of opinion which is accompanied by a recitation of the facts upon 

2 The Court also finds persuasive, upon initial review, the Post’s additional argument that 

the Sargent Article lacks actual malice because it is a “rational interpretation” of an ambiguous 

government report. Mot. at 27–28 (quoting Time, Inc. v. Pape, 401 U.S. 279, 290 (1971)). But it 

is unclear whether it is appropriate to apply this standard at the motion to dismiss stage, and the 

parties did not brief this specific question. Accordingly, the Court will not rely on this argument 

in reaching its decision. 

3 Federal courts applying New York defamation law have observed that the New York 

Constitution provides greater protection to opinions than does the Federal Constitution, and thus 

rely on the New York standard. See, e.g., Michel v. NYP Holdings, Inc., 816 F.3d 686, 695 (11th 

Cir. 2016) (“We note that New York’s law on this point is broader and more protective of speech 

than the requirements found in the Federal Constitution.” (citing Celle v. Filipino Rep. Enters.

Inc., 209 F.3d 163, 178 (2d Cir. 2000)). The Court will do the same here.
11

which it is based,’ or it may be ‘[a]n opinion not accompanied by such a factual recitation’ so 

long as ‘it does not imply that it is based upon undisclosed facts.’” Id. (citations omitted). By 

contrast, a mixed opinion “implies that it is based upon facts which justify the opinion but are 

unknown to those reading or hearing it.” Id. (citations omitted). 

Accordingly, “[t]he ‘essential task is to decide whether the words complained of, 

considered in the context of the entire communication and of the circumstances in which they 

were . . . written, may be reasonably understood as implying the assertion of undisclosed facts 

justifying the opinion.’” Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 178 (2d Cir. 2000)

(quoting Steinhilber v. Alphonse, 501 N.E.2d 550, 553 (N.Y. 1986)). “Distinguishing between 

fact and opinion is a question of law for the courts, to be decided based on ‘what the average 

person hearing or reading the communication would take it to mean.’” Davis, 22 N.E.3d at

1004–05 (citations omitted). 

New York courts consider three factors in this analysis: “(1) whether the specific 

language in issue has a precise meaning which is readily understood; (2) whether the statements 

are capable of being proven true or false; and (3) whether either the full context of the 

communication in which the statement appears or the broader social context and surrounding 

circumstances are such as to signal . . . readers or listeners that what is being read or heard is 

likely to be opinion, not fact.” Mann, 885 N.E.2d at 886 (citation omitted). The third Mann

factor is especially important, as the New York Court of Appeals has emphasized “a holistic 

approach to this inquiry.” Davis, 22 N.E.3d at 1005. “The burden rests with the plaintiff to 

establish that in the context of the entire communication a disputed statement is not protected 

opinion.” Celle, 209 F.3d at 179. 
12

Here, the Court finds that the alleged defamatory statement in the Waldman Article—

“For instance, who knows what sort of aid Russia and North Korea will give to the Trump 

campaign, now that he has invited them to offer their assistance?”—is a statement of 

nonactionable opinion. Waldman Article at 4 (underline in original). The Post acknowledges 

that this statement is comprised of two parts: first, “an assertion that President Trump ‘has 

invited’ foreign assistance” from Russia and North Korea; and second, “a question ‘who knows 

what sort of aid Russia and North Korea will give to the Trump campaign?’ as a result.” Reply 

at 8–9 (quoting Waldman Article at 4). The Court finds this framework helpful and accordingly 

will analyze each part of the statement in turn. 

At first glance, the statement that Trump has invited assistance from Russia and North 

Korea seems factual. Under the first two Mann factors, this assertion appears precise and 

verifiable—either Trump invited their assistance, or he did not. But critically, that is not the end 

of the inquiry—or even the focal point. The New York Court of Appeals has instructed that

“[r]ather than sifting through a communication for the purpose of isolating and identifying 

assertions of fact, the court should look to the over-all context in which the assertions were made 

and determine on that basis ‘whether the reasonable reader would have believed that the 

challenged statements were conveying facts about the . . . plaintiff.’” Davis, 22 N.E.3d at 1005

(citation omitted). Here, the third Mann factor—that is, the overall context of the statement—

weighs heavily in favor of nonactionable opinion. 

To begin, the form of the Waldman Article alerts the reader that the statement is one of 

opinion, not fact. “[T]he common expectation is that the columns and articles published on a 

newspaper’s Op Ed sections will represent the viewpoints of their authors and, as such, contain 

considerable hyperbole, speculation, diversified forms of expression and opinion.” Brian v. 
13

Richardson, 660 N.E.2d 1126, 1130 (N.Y. 1995). New York courts have therefore routinely 

dismissed defamation claims concerning statements in opinion columns. See, e.g., The New York 

Times Co., 2021 WL 938979, at *1 (“[T]he overall context in which the article was published, in 

the opinion section of the newspaper, signaled to the reader that ‘the broader social context and 

surrounding circumstances [indicate] that what is being read ... is likely to be opinion, not 

fact.’” (quoting Gross v. N.Y. Times Co., 623 N.E.2d 1163, 1167 (N.Y. 1993))). 

In addition to its form, the Waldman Article’s hyperbolic and colorful tone also signal 

opinion, not fact. See, e.g., Waldman Article at 3 (claiming that Trump’s 2018 midterm 

messaging was “This election is about me, and also immigrants are coming to kill you.”); id. at 4 

(speculating that for the 2020 election, the “president [is] convinced that if he just gets his 

supporters a little angrier, his victory will be assured”). The opinionated tone of the column is 

typical fare one finds in “heated political debate” and criticism about a presidential candidate—

all part of the “broader social context” in which the statement was made. Melius v. Glacken, 943 

N.Y.S.2d 134, 136 (N.Y. App. Div. 2012); see Frechtman v. Gutterman, 979 N.Y.S.2d 58, 62

(N.Y. App. Div. 2014) (“[E]ven apparent statements of fact may assume the character of 

statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, 

or other circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or 

hyperbole.” (quoting Steinhilber, 501 N.E.2d at 556)). Placed in its proper context, the 

seemingly “flat statement” that Trump “invited” assistance from Russia and North Korea takes 

on a rhetorical, livelier meaning. Steinhilber, 501 N.E.2d at 556. 

But that is not all. In addition to the opinionated context of the piece, the Waldman 

Article specifically provides the factual basis for its statement. The word “invited” in the 

allegedly defamatory statement hyperlinks to an unedited transcript of an Oval Office interview, 
14

where ABC News anchor George Stephanopoulos asked Trump about Russian interference in the 

2016 U.S. presidential election and Trump’s plans for the 2020 election. During the interview, 

this exchange occurred:

Stephanopoulos: Your campaign this time around, if foreigners, if Russia, if 

China, if someone else offers you information on opponents, should they accept it 

or should they call the FBI?

President Trump: I think maybe you do both. I think you might want to listen, 

there’s nothing wrong with listening. If somebody called from a country, Norway, 

“we have information on your opponent.” Oh, I think I’d want to hear it.

Stephanopoulos: You want that kind of interference in our elections?

President Trump: It’s not an interference, they have information. I think 

I’d take it. If I thought there was something wrong, I’d go maybe to the FBI. If I 

thought there was something wrong. But when somebody comes up with oppo 

research, right, they come up with oppo research. Oh, let’s call the FBI. The FBI 

doesn’t have enough agents to take care of it, but you go and talk honestly to 

congressmen, they all do it, they always have. And that’s the way it is. It’s called 

oppo research.

ABC Interview at 7 (underline removed). 

Courts applying New York defamation law have routinely found statements 

nonactionable opinion when they hyperlink the factual basis underlying the challenged 

statement.4 See, e.g., Sandals Resorts Int’l Ltd. v. Google, Inc., 925 N.Y.S.2d 407, 415 (N.Y. 

App. Div. 2011) (finding that email suggesting that resort’s hiring practices were racist was 

nonactionable opinion because “each remark is prompted by or responsive to a hyperlink”); 

Ganske v. Mensch, 480 F. Supp. 3d 542, 555 (S.D.N.Y. 2020) (finding statement that the 

plaintiff “clearly personally spread Russian bots on [his] own site” nonactionable opinion 

4

“The hyperlink . . . has become ‘the twenty-first century equivalent of the footnote for 

the purposes of attribution in defamation law, because it has become a well-recognized means 

for an author or the Internet to attribute a source.” Ganske v. Mensch, 480 F. Supp. 3d 542, 554

(S.D.N.Y. 2020) (citation omitted); accord Adelson v. Harris, 973 F. Supp. 2d 467, 484 

(S.D.N.Y. 2013), aff’d, 876 F.3d 413 (2d Cir. 2017). 
15

because “Defendant both referenced and hyperlinked to the data on which her opinion” was 

based); Pelkowski v. Hovermann, No. 20-cv-1845, 2021 WL 9032222, at *6 (E.D.N.Y. Sept. 9, 

2021) (ruling that statement that the plaintiff “enjoys” “shoplifting from small businesses” was 

protected opinion because the accompanying “disclosed footage . . . allows a reasonable viewer 

to make up his or her own mind” about author’s claim). In each case, the courts found the 

challenged statement nonactionable opinion because “[f]ar from suggesting that the writer knows 

certain facts that his or her audience does not know, the [statement] is supported by links to the 

writer’s sources.” Sandals Resorts, 925 N.Y.S.2d at 416. 

Likewise, the Waldman Article discloses the factual basis behind its opinion. By 

hyperlinking the ABC interview transcript directly to the word “invite,” it “ensure[s] that the 

reader has the opportunity to assess the basis upon which the opinion was reached in order to 

draw [the reader’s] own conclusions concerning its validity.” Davis, 22 N.E.3d at 1004 (citation 

omitted). A reader reviewing the transcript of the ABC interview may ultimately disagree with 

Mr. Waldman’s view that Trump “invited” North Korea’s assistance, however colorfully 

interpreted, but that is irrelevant. “The actionable element of a ‘mixed opinion’ is not the false 

opinion itself—it is the implication that the speaker knows certain facts, unknown to his 

audience, which support his opinion and are detrimental to the person about whom he is 

speaking.” Gutterman, 979 N.Y.S.2d at 62 (quoting Steinhilber, 501 N.E.2d at 553). Thus, the 

Court concludes that the first part of the challenged statement is nonactionable opinion. 

The second part of the statement—“who knows what sort of aid Russia and North Korea 

will give to the Trump campaign?”—is also nonactionable opinion. Again, the form and tone of 

the opinion column, along with the broader social context, prime the reader to expect opinion, 

not fact. Furthermore, the second part of the statement is a question, not an assertion. Questions
16

are “an exercise in rhetoric.” Sandals Resorts, 925 N.Y.S.2d at 415. As then-Judge Kavanaugh 

observed after surveying various jurisdictions’ defamation laws, “posing questions has rarely 

given rise to successful defamation claims” because “[q]uestions can be posed to explore, to 

inquire, to prompt further inquiry, to frame discussion, to initiate analysis, and the like. But 

questions are questions.” Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1338–39 (D.C. Cir. 

2015); see also Abbas v. Foreign Pol’y Grp., LLC, 975 F. Supp. 2d 1, 16 (D.D.C. 2013)

(observing that “questions invite the reader to form her own judgments”). Two further clues 

demonstrate the speculative nature of this question. First, Mr. Waldman begins the question with 

the words “who knows”? Waldman Article at 4. Second, the sentence preceding this phrase

states, “The 2020 election will obviously be distinct in all kinds of ways we can’t yet anticipate.” 

Id. (emphasis added). Under the three Mann factors, this question lacks a precise meaning, is not

capable of being proven true or false, and is surrounded by context indicative of opinion. Thus, 

the second part of the challenged statement is also nonactionable opinion.

At oral argument, the Trump Campaign also argued that the second part of the statement

contains its own factual predicate: that Russia and North Korea will give aid to the Trump 

Campaign, even if it is unclear what sort of aid they will give. See Hr’g Tr. at 34:18–37:10. 

Neither the Complaint nor the opposition brief raised this argument, see Compl. ¶ 16–17, 27; 

Opp’n at 11, so the Court need not consider it, see U.S. ex rel. Davis v. District of Columbia, 793 

F.3d 120, 127 (D.C. Cir. 2015) (“Generally, arguments raised for the first time at oral argument

are forfeited.”). Regardless, it also fails on the merits. The statement does not imply such fine 

distinctions. “Courts must be mindful that the ‘hypertechnical parsing of a possible fact from its 

plain context of opinion’ imperils ‘the cherished constitutional guarantee of free speech.’”

Pelkowski, 2021 WL 9032222, at *6 (cleaned up) (citing Immuno AG. v. Moor-Jankowski, 77 
17

N.Y.2d 235, 256 (N.Y. 1991)). Given the “plain context of opinion” here, the Court rejects the 

Trump Campaign’s “hypertechnical” reading.

5

 

* * *

The Post seeks dismissal with prejudice. See Mot. at 37. Although the Court grants the 

Post’s motion to dismiss, it will dismiss the Complaint without prejudice to afford the Trump 

Campaign another opportunity to adequately plead factual allegations on the element of actual 

malice. See Cottle, 404 F. Supp. 3d at 87. The Court will give the Trump Campaign 30 days to 

file a motion seeking leave to amend that attaches a proposed amended complaint. If no 

proposed amended complaint is received within that 30 day period, the dismissal will convert to 

with prejudice. 

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 12) is granted. An 

order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: February 3, 2023 RUDOLPH CONTRERAS

United States District Judge

5 Even were the Waldman Article’s statement a statement of fact, the Complaint 

nonetheless fails to plausibly allege that the statement was made with actual malice, which is a 

separate and independent basis for dismissing the claim.