1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

PRESIDENT DONALD J. TRUMP,

 PLAINTIFF,

 v.

CABLE NEWS NETWORK, INC.

 DEFENDANT.

 CASE NO.: 0:22-CV-61842-AHS

 PLAINTIFF’S RESPONSE IN 

 OPPOSITION TO

 DEFENDANT’S 

 MOTION TO DISMISS

By and through the undersigned counsel, Plaintiff, President Donald J. Trump (“Plaintiff”) 

submits this Response in Opposition to Defendant’s Motion to Dismiss and Incorporated 

Memorandum of Law.

I. Introduction

“Should we – should journalists pull out their Trump playbook in order to deal with 

what Elon Musk is doing at Twitter? Is it a – is it a page out of the same book?” 

- Don Lemon, CNN News Anchor, December 19, 2022. 1 

What is the “Trump playbook” that Don Lemon and other “journalists” at CNN were 

using? It was a concerted plan to defame a Republican President and to skew a national election

through falsehoods and distortions.

CNN opens its Motion to Dismiss and Incorporated Memorandum of Law (“Motion”) 

quoting New York Times v. Sullivan, 376 U.S. 254 (1964), for its proposition that the First 

Amendment requires a “profound commitment to the principle that debate on public issues should 

be uninhibited.” Motion at 1 (quoting 376 U.S. at 270). Plaintiff agrees but asks: Would a corrupt, 

defamatory playbook promote an “uninhibited, robust, and wide-open” debate, or impede it? The 

Complaint in this case does not attack Constitutional principles or thwart legitimate political 

discourse; it challenges the purveyors of libel and slander who abuse the Constitution, and it 

challenges those who use illicit playbooks and other tactics in a results-oriented fashion. More 

1 CNN This Morning, TRANSCRIPT PROVIDERS, https://transcripts.cnn.com/show/ctmo/date/2022-

12-19/segment/02.

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directly, the Complaint challenges a major media outlet that set out to misuse its power to 

manipulate its audience in a dishonest effort to discredit the Plaintiff for political purposes. CNN 

defends this relentless campaign by characterizing its news product as pure opinion and rhetorical 

hyperbole, while suggesting that calling someone Hitler—which was per se defamation for 

decades following World War II—is now just “colorful” language that does not even merit a jury’s 

consideration. Propaganda masquerading as journalism, however, is not what the First Amendment 

was established to insulate from liability.

II. Statement of Facts

Plaintiff alleges, as fact, that:

 CNN uttered statements that falsely2 equated him with Hitler together with CNN falsely 

asserting that, in a future term in office, Plaintiff will be Hitler like. Compl. ¶ 41, 51, 61, 

69. 

 Being compared to Hitler in this manner causes and did cause reputational harm. Id. ¶ 36, 

43, 44, 45, 50, 63, 64, 68, 72.

 CNN uttered these statements as purported fact—not opinion or hyperbole. Id. ¶ 41, 61.

 CNN took credit for the certified results of the Presidential Election of 2020, and is actively 

working to prevent Plaintiff from winning the Presidency in 2024. Id. ¶ 1, 14.

 CNN uttered the false and defamatory statements as part of its coordinated campaign to 

harm Plaintiff’s chances at winning the Presidency in 2024. Id. ¶ 1, 12, 23.

 When CNN compares Trump to Hitler, the comparison is false. Id. ¶ 36, 39, 42, 47, 55, 

59, 62, 65, 74 . The falsity of this comparison is both explicitly stated in Plaintiff’s claims 

and implied in the allegations. See id.

III. Legal Standard

When evaluating a motion to dismiss a complaint for failure to state a claim, the Court 

must accept as true all factual allegations in the complaint and draw all reasonable inferences 

therefrom in the plaintiff’s favor. Deuel v. Santander Consumer USA, Inc., 700 F.Supp.2d 1306, 

1309 (S.D. Fla. 2010) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 

2 The Motion complains the Complaint “does not explain why that allusion is false,” Motion at 6, 

as if the Complaint were missing an element of falsity. However, having identified the falsehood, 

and asserting that it is false (i.e., not true), there is no case law requiring a Plaintiff to plead facts 

that show why a false statement is, in fact, false. The Complaint clearly states that Plaintiff is not 

Hitler-like nor would be Hitler-like in any future political role. To the extent that CNN 

complains that the Complaint does not explicitly state that Plaintiff is not responsible for the 

murder of at least 12 million people, which occurred prior to Plaintiff’s birth, the Court can take 

judicial notice of such facts.

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“Accordingly, a well pleaded complaint will survive a motion to dismiss even if it appears that 

recovery is remote and unlikely.” Id. at 1309 (internal quotation marks omitted) (quoting Twombly, 

550 U.S. at 556). Indeed, a “well-pleaded complaint may proceed even if it strikes a savvy judge 

that actual proof of those facts is improbable.” Cole-Parmer Instrument Co. v. Prof’l Labs., Inc., 

568 F.Supp.3d 1307, 1313 (S.D. Fla. 2021) (internal quotation marks omitted) (quoting Twombly, 

550 U.S. at 556).

IV. Argument

A. The Question of CNN’s Actual Malice Toward President Trump Is Sufficiently 

Alleged to Allow for Jury Determination.

Under the actual malice standard put forth by the Supreme Court in New York Times v. 

Sullivan, “[i]f a false and defamatory statement is published with knowledge of falsity or a reckless 

disregard for the truth, the public figure may prevail” in a suit for defamation. Harte-Hanks 

Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989). This actual malice standard is 

subjective and “asks whether the publisher in fact entertained serious doubts as to the truth of his 

publication.” Berisha v Lawson, 973 F.3d 1304, 1312 (11th Cir. 2020) (internal quotation marks 

omitted) (emphasis in original) (quoting Silvester v. Am. Broad. Cos., 839 F.2d 1491, 1493 (11th 

Cir. 1988)). The Complaint has sufficiently pled this element. 

Plaintiff’s Complaint provides numerous examples of CNN publishing statements about 

President Trump with reckless disregard for their truth. The Complaint alleges that CNN anchors 

consistently labeled Plaintiff’s election integrity concerns a “Big Lie,”—i.e., an intentional and 

deceptive propaganda strategy used by Nazis such as Adolph Hitler and Joseph Goebbels.3 See

Compl. ¶¶ 16, 19, 28. CNN anchors tossed this label around without regard for the absolute and 

3 Defendant alleges that Plaintiff unreasonably builds “inference upon inference in order to find 

defamatory meaning” in the term the “Big Lie.” Motion at 9. Defendant further contends that the 

“average reader[] would not plausibly understand ‘Big Lie’ to be an allusion to the Nazis.” Id.

CNN’s reference to the “Big Lie,” is not merely inferential. CNN anchors have explicitly stated 

on air that the term “Big Lie,” refers to Nazi propaganda, utilized by Adolph Hitler. Compl. ¶ 24. 

Similarly, CNN programming has used the term the “Big Lie,” while simultaneously displaying 

imagery of Adolph Hitler and the Nazis. Under these circumstances, the correlation between the 

“Big Lie,” and Nazism is unmistakable. 

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irrefutable truth—that President Trump believed and continues to believe, with solid factual 

support, that the 2020 election had material irregularities.

Plaintiff’s assertion of actual malice is further supported by the Complaint’s allegations 

that CNN and its employees were motivated to smear Plaintiff and undermine his political 

standing. Contrary to Defendant’s assertions, evidence of a defendant’s motivation is relevant to 

the plausibility of actual malice. Herbert v. Lando, 441 U.S. 153, 160 (1979) (“New York Times

[v. Sullivan] and its progeny made it essential to proving liability that the plaintiff focus on the 

conduct and state of mind of the defendant.”); see also Duffy v. Leading Edge Prods., Inc., 44 F.3d 

308, 315 n.10 (5th Cir. 1995) (“[E]vidence of ulterior motive can often bolster an inference of 

actual malice.”). Indeed, in establishing the “belief of the defendant in the truth of [its] statement,” 

plaintiffs have been permitted to rely on either direct or circumstantial evidence of “threats, prior 

or subsequent defamations, subsequent statements of the defendant, circumstances indicating the 

existence of rivalry, ill-will or hostility between the parties, facts tending to show a reckless 

disregard of the plaintiff’s rights, and, in an action against a [news source], custom and usage with 

respect to the treatment of news items of the nature of the one under consideration.” Herbert, 441 

U.S. at 164 n.12 (quoting 50 Am.Jur.2d, Libel and Slander § 455 (1979)). Thus, evidence of 

hostility which the defendant may have borne toward the plaintiff can be both relevant and 

probative in establishing actual malice. Hotchner v. Castillo-Puche, 404 F.Supp. 1041, 1047 

(S.D.N.Y. 1975) (noting that “subjective factors” such as “corrupt motive or some personal spite 

or desire to injure the plaintiff,” may be relevant to the issue of actual malice.) The Complaint 

provides ample evidence that the Defendant’s “reporting” was motivated, not by truth, but rather 

by ill will and hostility toward the Plaintiff. For example, the Complaint discusses an instance in 

which a CNN employee was recorded boasting about the network’s role in preventing Plaintiff’s 

re-election. Compl. ¶ 23. This evidence supports the allegation that CNN’s broadcasts were 

motivated by an intent to destroy the Plaintiff politically, rather than by a striving to accurately

report current events. 

Finally, CNN contends that Plaintiff must, at this preliminary stage in the litigation, be able 

to identify with specificity each individual at CNN responsible for the defamatory publications. 

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Motion at 17-18. Defendant’s argument was considered and rejected by this Court in Dershowitz

v. Cable News Network, Inc.,: “The Court does not accept CNN’s argument that a public figure 

defamation plaintiff must identify and plead (before discovery) each responsible decision maker 

within a news organization.” 541 F.Supp.3d 1368 (S.D. Fla. 2021). This Court concluded, “[i]n a 

case involving a large news organization where the responsible decision makers may not be 

otherwise known, a plaintiff must be permitted to plead facts that would plausibly establish actual 

malice without identifying a specific person.” Id. Identifying the persons responsible for the 

broadcasting decisions is a “matter for discovery,” and thus need not be plausibly alleged to survive 

a motion to dismiss. Id. Accordingly, Defendant’s argument to the contrary should be rejected 

here, too. 

B. The Sustained Defamation of Falsely Linking President Trump to Nazis Provides 

a Perfect Vehicle for Supreme Court Reexamination of Sullivan.

The Court’s holding in New York Times v. Sullivan was largely premised on the notion that 

a free and robust marketplace of ideas requires that the press have adequate “breathing space” for 

free expression. Sullivan, 376 U.S. at 271. The Court reasoned that the press should not be faced 

with unfettered liability for unintentionally publishing erroneous statements which, to some 

degree, is inevitable in a fastmoving marketplace of ideas. Id. Yet, the Sullivan Court’s 

understanding of how a free press should function is no longer the reality in the modern age.4

Indeed, it seems unlikely that at the time Sullivan’s actual malice standard was pronounced, the 

Court envisioned a news outlet which seek to indoctrinate its audience rather than inform. 

Sullivan’s standard no longer merely provides “breathing space” for the occasional misstatement, 

but rather, offers a nearly impenetrable shield to the media, allowing it to publish defamatory 

statements targeting political enemies, without fear of consequence. This has led to a lack of public 

confidence in the media,5 and in the absence of serious self-correction the courts are in a critically 

4 David A. Logan, Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan, 81 

OHIO ST. L.J. 759, 803 (2020) (“Our current media environment would have been totally 

unrecognizable to the members of the Supreme Court a half-century ago.”). 

5 Id. at 796–97 ("The decline in public confidence in a broad range of institutions has accelerated 

in recent years and confidence in the press is at its lowest ebb in the history of the Gallup 

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important position to reign in the reckless disregard for the truth that has flourished under 

Sullivan’s impact.

Given this shift in the modern media landscape, numerous Supreme Court Justices have 

expressed the need for a re-examination of Sullivan’s “almost impossible standard.” McKee v. 

Cosby, 139 S. Ct. 675, 675 (2019) (Thomas, J., concurring in denial of certiorari); see also Dun & 

Bradstreet, Inc., v. Greenmoss Builders, Inc., 427 U.S. 749, 767 (1985) (White, J., concurring in 

judgment) (“I have also become convinced that the Court struck an improvident balance in the 

New York Times case between the public’s interest in being fully informed about public officials 

and public affairs and the competing interest of those who have been defamed in vindicating their 

reputation.”); Rosenblatt v. Baer, 383 U.S. 75, 92-93 (1966) (Stewart, J., concurring) (“No matter 

how gross the untruth, the New York Times rule deprives a defamed public figure of any hope for 

legal redress without proof that the lie was a knowing one or uttered in reckless disregard of the 

truth. That rule should not be applied except where a State’s law of defamation has been 

unconstitutionally converted into a law of seditious libel.”). Recently in Coral Ridge Ministries 

Media, Justice Thomas noted several deficiencies in the Sullivan standard, including its tendency 

to insulate those who perpetuate lies, leaving public figures without any avenue through which to 

redress reputational injury: “This case is one of many showing how New York Times and its 

progeny have allowed media organizations and interest groups to ‘cast false aspersions on public 

figures with near impunity.’” 142 S. Ct. 2453, 2455 (Thomas, J., dissenting from denial of 

certiorari) (citing Tah v. Global Witness Publ’g, Inc., 991 F.2d 231, 245 (D.C. 2021) (Silberman, 

J., dissenting in part)). Similarly, in Berisha v. Lawson, Justice Gorsuch discussed the inadequacy 

of the Sullivan standard in light of the fact that the “rise of 24-hour cable news and online media 

platforms,” has facilitated the unfettered “spread of disinformation.” 141 S. Ct. 2424, 2424-25 

(2021) (Gorsuch, J., dissenting from denial of certiorari). Justice Gorsuch continued, “it’s unclear 

how well these modern developments serve Sullivan’s original purpose. Not only has the doctrine 

evolved into a subsidy for published falsehoods on a scale no one could have foreseen, it has come 

Poll. Even more troubling is evidence that Americans are split when asked if the media is 

actually an enemy of democracy.”) 

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to leave far more people without redress than anyone could have predicted.” Id. at 2429. This 

jurisprudence highlights that Sullivan’s actual malice standard neither comports with the modern 

media landscape nor serves its intended purpose of ensuring the proliferation of information and 

ideas to the public. See Dun & Bradstreet, Inc., 427 U.S. at 767 (“In a country like ours, where the 

people purport to be able to govern themselves through their elected representatives, adequate 

information about their government is of transcendent importance. . . . But these First Amendment 

values are not at all served by circulating false statements of fact about public officials.”). 

As discussed above, the Complaint adequately establishes that CNN acted with actual 

malice given that it published statements about President Trump with knowledge of their falsity, 

or, at a minimum, with reckless disregard for whether these false statements are true. However, 

even if this Court disagrees, Plaintiff urges it to refrain from “reflexively apply[ing]” the Sullivan

standard. McKee, 139 S. Ct. at 676. Rather, the instant case presents factors which warrant 

reconsideration of the applicability of the standard: (1) a “news network” which concedes that its 

broadcasts and publications are not intended as truthful reporting of current events, but rather as 

hyperbole; (2) a public figure who has suffered substantial injury as a result of the defamatory 

statements made by the “news network;” and (3) pervasive defamatory statements which are 

intended to poison the marketplace of ideas, indoctrinate audiences, and obtain a particular 

political outcome, rather than foster robust debate and free expression. Surely, this is not what was 

envisioned by the Sullivan Court. Given these circumstances, the Court should reconsider whether 

Sullivan’s standard truly protects the democratic values embodied by the First Amendment, or, 

instead, facilitates the pollution of the “stream of information about public officials and public 

affairs” with false information. Dun & Bradstreet, Inc., 427 U.S. at 769. 

C. The Plaintiff’s State of Mind Regarding Election Fraud is Genuine and 

Increasingly Supported by Tangible Evidence.

The “Big Lie” accusation wrongly assumes that President Trump had no basis to question

the accuracy of the 2020 election results. Subtly, CNN’s Motion claims that “evidence of material

election fraud does not exist.” Motion at 2. That qualifier is evidence that even CNN acknowledges

that there is demonstrable, and even increasing, evidence of fraud in the 2020 election, but CNN 

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arbitrarily and with no basis in fact stakes the claim that the fraud did not change the overall 

outcome. The fact that two parties can sincerely disagree on materiality is why branding one side 

as a Nazi-like propagandist is absurd and defamatory.

The focus of the Complaint is on the reckless disregard for truth, and aggressive political 

advocacy, of a CNN campaign to wrongfully liken President Trump to Adolf Hitler. But even to 

the extent that the Plaintiff ultimately chooses to present evidence of President Trump’s state of 

mind, it will be able to point to large-scale supporting evidence that has emerged publicly around 

the country. For example, since the 2020 election, The Heritage Foundation’s Election Fraud

Database contains 1,402 proven instances of election fraud, 1,209 criminal convictions, and 48 

civil penalties.6 Courts have revisited and invalidated ad hoc changes to the election process, see

Teigen v. Wisconsin Elections Comm’n, 976 N.W.2d 519 (Wis. 2022); Ball v. Chapman, 284 A.3d 

1189 (Pa. 2022), and the Georgia Supreme Court recently reversed and remanded a case 

challenging Fulton County’s handling of 147,000 absentee and mail-in ballots.7 Even the 

fundamental issues of state legislative power over federal election processes, the Elections Clause,

and judicial review of state legislative action regarding federal elections are now squarely before 

the Supreme Court in Moore v. Harper, 142 S. Ct. 2901 (2022) (mem). 

Further, consistent with their biased approach to election integrity, media outlets such as 

CNN were quick to dismiss President Trump’s concerns about a politicized FBI meddling in 

national elections. However, the recently released “Twitter Files” prove that President Trump had 

it right. Not only did the FBI and Twitter work together to censor coverage of the Hunter Biden 

laptop story under the false pretense that the laptop was “hacked” and leaked by Russian agents 

aimed at influencing the 2020 U.S. Presidential Election, but they also met with various reporters, 

media companies, and social media firms in September 2020 to prepare for a possible “Hack-andDump” operation related to the Hunter Biden laptop story. “The goal was to shape how the media 

6 Election Fraud Cases, HERITAGE FOUND., https://www.heritage.org/voterfraud-print/search. 7 Gabriella Nunez, Georgia Supreme Court sends lawsuit over 2020 election back to appeals 

court, ALIVE, (Dec. 20, 2022), https://www.11alive.com/article/news/local/2020-electionlawsuit-ga-supreme-court/85-efbeb860-ee50-4ea6-8356-31532e413269.

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covered it—and how social media carried it.”8 That political censorship worked to the benefit of 

Joe Biden,9 dishonestly giving a law enforcement imprimatur upon Twitter’s agenda to defeat 

President Trump at the expense of free, and accurate, reporting.

Even before the “Twitter Files” were released a CNN poll showed 56% of Americans have 

little or no confidence in our elections, with “just 68% of democrats” confident and “41% of 

independents.”10 The CNN Editor-at-large ascribes this doubt to “the insidiousness of Trump’s big 

lie” and likened his claims to an ear worm “wheedling [its] way into the consciousness of the 

public,” but President Trump has plenty of factual basis and widespread support for his 

consistently–held position on the 2020 election’s lack of accuracy and integrity.

D. CNN’s Position Takes the “News” Out of Cable News Network.

Without even registering a whiff of irony, CNN’s primary defense to the Complaint is that 

the news network is so uniform in giving its viewers hyperbole and opinion about President Trump 

that it is immune from a defamation challenge. The embarrassing concession that they provide 

fact-free news does not support dismissal of the Complaint.

1. CNN is Not Entitled to Any Privilege for Rhetorical Hyperbole.

A defendant can only escape liability for defamation by contending it is “rhetorical 

hyperbole” when “the language itself negates the impression that the writer was seriously 

maintaining that the plaintiff committed the particular act forming the basis of the defamation.” 

Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1378-79 (S.D. Fla. 2006). To determine if a statement 

is “an expression of fact or an expression of rhetorical hyperbole, context is paramount[.]” Id.

The contours of “rhetorical hyperbole” were discussed by the Southern District of Florida 

in Fortson v. Colangelo. Id. at 1379. In that case, a professional basketball player sued a columnist 

8 Lee Fang (@lhfang), Twitter (Dec. 19, 2022, 6:12 PM), 

https://twitter.com/lhfang/status/1604977967754461185.

9 Rich Noyes, Special Report: The Stealing of the Presidency, 2020, MRCNEWSBUSTERS, (Nov. 

24, 2020), https://www.newsbusters.org/blogs/nb/rich-noyes/2020/11/24/special-report-stealingpresidency-2020 (reporting that 17 percent of Biden voters would not have voted for him had 

they been aware of the censored news stories). 

10 Chris Cillizza, Here’s the terrible reality: Trump’s election lie is on the march, CNN, (Feb. 

11, 2022), https://www.cnn.com/2022/02/11/politics/trump-big-lie-2020-electionpoll/index.html; see also Compl. ¶ 28.

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for calling the player “thugged out[,]” a “vacant lot[,]” and a “gangsta or wangsta,” in his weekly 

column. Id. at 1376. The court concluded that the columnist’s statements were not actionable given 

that they were “made through a medium that foster[ed] debate” and that “routinely use[ed] 

figurative or hyperbolic language.” Id. at 1381. Given this context, the court reasoned that “a 

reasonable reader [was] more likely to regard its content as opinion and/or rhetorical hyperbole,” 

and would be unlikely to interpret the “colorful language” as a literal assertion of fact. Id. By 

contrast, CNN did not use the terms “Nazi” “Hitler” “fascist,” and the “Big Lie,” in a hyperbolic 

or rhetorical manner. Rather, CNN used these terms to draw a direct and literal comparison 

between the Plaintiff, Nazism, and fascist leadership more generally. CNN’s statements seriously 

attempt to falsely state that the Plaintiff intentionally used a Nazi-like propaganda technique to 

preserve his political power. 

For example, the article written by Ruth Ben-Ghiat directly labels President Trump as a 

“leader of authoritarian intentions and tendencies.”11 Defendant now claims this is simply “a 

political point,” being made by the author, but the direct and targeted nature of the label reveal a 

more literal assertion. See Donald J. Trump for President, Inc. v. CNN Broadcasting, Inc., 500 

F.Supp.3d 1349, 1356 (N.D. Ga. 2020) (finding that an article, published as an editorial, was not 

protected opinion given that it made factual assertions without “qualifying” or “softening 

language”). Similarly, in the article “Here’s the terrible reality: Trump’s election lie is on the 

march,” Chris Cillizza unequivocally refers to “Trump’s big lie.”12 There is a direct assertion that 

Plaintiff has his own, authoritarian Big Lie. Unlike the commentary in Fortson, the statements 

made by CNN are intended to be, and are likely to be, taken literally by the average CNN viewer.

Indeed, audience responses on social media indicate that CNN viewers have, after viewing 

CNN programming, come to associate the Plaintiff with fascist figures such as Hitler and the Nazis. 

For example, in response to the Fareed Zakaria special, “The Fight to Save Democracy,” one 

11 Compl. ¶ 28 (citing Ruth Ben-Ghiat, Trump’s big lie wouldn’t have worked without his 

thousands of little lies, CNN, (Jan. 25, 2021), https://www.cnn.com/2021/01/25/opinions/big-lieben-ghiat/index.html). 

12 Compl. ¶ 28 (citing Chris Cillizza, Here’s the terrible reality: Trump’s election lie is on the 

march, CNN, (Feb. 11, 2022), https://www.cnn.com/2022/02/11/politics/trump-big-lie-2020-

election-poll/index.html). 

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viewer tweeted, “The similarity between Hitler in 1930s Germany and Trump in 2016 are 

notorious. And the way you made the segment by on and off alternate images of both. Even if not 

apparent before, you made it now.”13 Thus, the instant case is distinguishable from Fortson. There, 

no reasonable audience member would believe that the defendant was literally a “gangsta” or 

“vacant lot,” based on the rhetorical language in the defendant’s column. By contrast, at least some

CNN’s audience members have been unjustly led to believe that Plaintiff literally is a fascist 

leader—akin to the most repugnant figure in modern history, Adolf Hitler. 

Further, unlike the column in Fortson, CNN should not be considered a medium through 

which subjective viewpoints are expected to be communicated. As an initial matter, CNN’s own 

name—Cable News Network—denotes its role as a news source. Further, its slogan, “the most 

trusted name in news,” Compl. ¶ 1, signals the network’s self-proclaimed designation as a reliable 

source of objective information. Given this verbiage, it would be reasonable for a viewer to believe 

that CNN holds itself out as an unbiased news source rather than an opinion-driven platform.

Here, Defendant requests that this Court grant it “wide[] latitude,” given that its statements 

were made in reference to the “the integrity of the 2020 presidential election.” Motion at 12. 

According to Defendant, the use of epithets such as “racist” “fascist” and “Neo-Nazi,” are 

necessary to ensure the “public debate will not suffer for lack of imaginative expression.” Id. at 11 

(internal quotation marks omitted) (quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990)). 

CNN did not use the incendiary language as satire or parody. The language was published and 

broadcast by a network claiming to be the “most trusted name in news.” Bennet v. Hendrix, 325 

Fed.Appx. 727, 741 (11th Cir. 2009) (recognizing that “the tone of the speech and its medium of 

expression” are important considerations when determining whether a statement constitutes 

rhetorical hyperbole). Publications featuring photos of Plaintiff alongside this language created an 

even stronger and more literal false association between Plaintiff and Hitler. The literality of these 

assertions was bolstered by the fact that they come from a network claiming to be an objective 

news source. 

13 Compl. ¶ 21 (citing https://twitter.com/FareedZakaria/status/1480611413777436683 (last 

visited Aug. 20, 2022).

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2. CNN is Not Entitled to Any Privilege for Opinion.

Generally, a statement is considered pure opinion only when it is based upon facts that the 

communicator sets forth in a publication, or that are otherwise known or available to the reader or 

listener as a member of the public. Hay v. Indep. Newspapers, Inc., 450 So.2d 293, 295 (Fla. 2d 

DCA 1984). However, the “Supreme Court [has] recognized that [e]ven if the speaker states the 

facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his 

assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply 

couching such statements in terms of opinion does not dispel these implications.” LRX, Inc. v. 

Horizon Assocs. Joint Venture, 842 So.2d 881, 885 (Fla. 4th DCA 2003) (internal quotation marks 

and alterations omitted) (quoting Milkovich, 497 U.S. at 18-19); see also Anson v. Paxson 

Commc’ns Corp., 736 So.2d 1209, 1211 (Fla. 4th DCA 1999). 

CNN’s publications contain false assertions of fact that disqualify them from inclusion in 

the category of “pure opinion.” The statements at issue assert that, by voicing his concerns 

regarding the integrity of the 2020 election, Plaintiff has perpetuated a “Big Lie,”—i.e., a 

propagandistic strategy utilized by Nazis such as Hitler. This assertion is false because Plaintiff’s 

election integrity concerns are genuine, not propaganda. CNN has also asserted that Plaintiff is a 

destructive, fascist leader. Again, this is an untrue statement capable of being disproven. Simply 

labeling statements as “opinion,” does not negate that they are false assertions of facts. 

CNN made an identical argument in Dershowitz, contending that “because the 

impeachment trial was widely covered by it and other media outlets, the underlying facts were 

‘known to the audience[.]’” 541 F. Supp.3d at 1367. CNN reasoned that, under these 

circumstances, the statements at issue constituted non-actionable statements of pure opinion. Id.

This Court rejected CNN’s argument, instead concluding that “the commentator’s statements set 

forth in the [c]omplaint were not pure opinion but instead were mixed expressions of opinion that 

could reasonably be construed as defamatory.” Id.

The statements at issue in the Complaint are, at a minimum, mixed expressions of opinion. 

An expression of mixed opinion is “based upon facts regarding a person or his conduct that are 

neither stated in the publication nor assumed to exist by a party exposed to the communication. 

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Rather, the communicator implies that a concealed or undisclosed set of defamatory facts would 

confirm his opinion.” Hay, 450 So.2d at 295; From v. Tallahassee Democrat, Inc., 400 So.2d 52, 

57 (Fla. 1st DCA 1981). Simply put, a mixed expression of opinion “implies the allegation of 

undisclosed defamatory facts as the basis for the opinion.” Dershowitz, 541 F. Supp.3d at 1367 

(internal citations omitted). Statements which imply an underlying attack on an individual’s 

character, without citation or attribution, may be considered mixed expressions of opinion. Smith 

v. Taylor County Publ’g Co. Inc., 443. So.2d 1042, 1047 (Fla. 1st DCA 1983). 

If the Court concludes that the statements at issue are not assertions of fact, it should, at a 

minimum, conclude that they are mixed expressions of opinion. CNN’s statements imply an 

underlying attack on Plaintiff’s character. When CNN anchors refer to Plaintiff’s “Big Lie,” there 

is an underlying false assertion that Plaintiff is akin to Hitler—i.e., a fascist leader willing to use 

propaganda for political power. In this regard, CNN’s statements are similar to the statements 

made by the defendant in Smith, because they refer to underlying, but (often) unstated facts (the 

origins of Hitler’s and Goebbels’s “Big Lie”) in order to malign Plaintiff’s character.

E. CNN’s Draftsmanship Challenges Fail to Support Dismissal.

CNN raises several arguments in an effort to claim deficient pleading by Plaintiff. None 

are legally or factually supported.

1. CNN Wrongly Attempts to Cull Allegations Outside of One Paragraph.

Plaintiff’s Complaint presents a framework outlining how CNN set out to malign Plaintiff 

through endless defamatory attacks. While the specific claims for relief are distilled to meet 

statutory requirements, the nature of CNN’s libelous and slanderous conduct exceeds the scope of 

typical defamation actions. Plaintiff could not feasibly bring a claim for each and every defamatory 

statement published by CNN.14 However, allegations that demonstrate the pervasiveness of CNN’s 

defamation serve to support Plaintiff’s specific claims. 

CNN would have the Court restrict its analysis by focusing exclusively on one paragraph 

of the 28-page Complaint. Motion at 2. CNN’s rationale: Plaintiff’s defamation claims are 

14 See for instance, Paragraph 27 of the Complaint, identifying research that CNN has used the 

term the “Big Lie” in reference to the Plaintiff more than 7,700 times.

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grounded in five publications for which Plaintiff gave CNN the opportunity to retract, as required

under Florida law before a defamation action may be brought. See Motion at 2; see also Fla. Stat. 

§ 7701.01. The notice requirement limits the particular statements that are presented as defamatory 

to the jury; but Defendant is not entitled to ignore every other allegation that supports Plaintiff’s 

claims.

While a court is generally limited to the four corners of the complaint at this stage, 

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009), the Court should look at all

allegations in the complaint, not just those referenced in the claims for relief, or those that suit the 

Defendant’s account. As the District Court of Appeal of Florida stated in Rasmussen v. Collier 

Cnty. Pub. Co.: “In assessing whether an allegedly libelous statement is opinion, the court must 

construe the statement in its totality ... It must take into account all of the circumstances 

surrounding the publication, including the medium by which it was disseminated and the audience 

to which it was published.” 946 So. 2d 567, 571 (Fla. 2d DCA 2006) (citations omitted). The 

Court’s assessment should incorporate not just the contents of each specific publication but the 

relevant context from the surrounding allegations in the Complaint.

Nonetheless, standing alone, each of the five publications that were noticed to Defendant 

under Florida Statute Section 770.01 provide ample basis for his claims, and do not merit any 

insulation from liability. Whether the proponent of a particular statement is a CNN host, a paid 

contributor, or a regular guest, each publication was falsely presented as factual and the impact on 

viewers and readers was both predictable and desirable. CNN knowingly chose to sabotage a 

presidential candidate with the most odious, untrue personal comparison imaginable. The five 

counts reflecting that decision are adequately pled and merit consideration by a jury.

2. The Plaintiff Has Sufficiently Pled Allegations Required of a Public Figure.

Plaintiff alleges the elements required of a public figure: (1) the alleged defamatory 

statements are “sufficiently factual to be susceptible of being proved true or false”; (2) the 

statements are false; and (3) CNN made the alleged defamatory statements with “actual malice”—

“with knowledge that it was false or with reckless disregard of whether it was false or not.” Coral 

Ridge Ministries Media, Inc. v. Amazon.com, Inc., 6 F.4th 1247, 1252 (11th Cir. 2021), cert. denied 

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sub nom. Coral Ridge Ministries Media, Inc. v. S. Poverty L. Ctr., 213 L. Ed. 2d 1102, 142 S. Ct. 

2453 (2022) (internal citations omitted). The Complaint plausibly alleges these elements.

15

a. Plaintiff’s Allegations are Sufficiently Factual to be Susceptible of 

Being Proved True of False.

The Supreme Court’s opinion in Milkovich, 497 U.S. at 1, is instructive here. In Milkovich, 

the Supreme Court held that a reporter’s column that implied the plaintiff perjured himself could 

permit recovery for defamation. Id. at 21. In assessing whether the column was defamatory, the 

Supreme Court noted that a statement may be sufficiently factual to be susceptible of being proved 

true or false because of its connotation. Id.; see also Pullum v. Johnson, 647 So. 2d 254, 257 (Fla. 

1st DCA 1994). The Supreme Court highlighted that an accusation that someone is a liar could be 

defamatory, and “couching such statements in terms of opinion does not dispel these implications.” 

Milkovich, 497 U.S. at 19. In other words, “connotations” and “implications” can be the basis of a 

defamation claim, capable of being assessed for their veracity. Connotations that the Plaintiff is 

the perpetrator of the “Big Lie,” a tactic of Hitler, supports a defamation claim.

The Defendant cites several inapposite cases to support its challenge to this Complaint, but 

all of them are procedurally distinct from the present matter.16 The D.C. Court of Appeals decided 

Ollman on appeal after the defendants’ summary judgment motion was granted. In Ollman, at issue 

were the defendants’ queries in a Washington Post column whether the plaintiff was a Marxist 

activist and the record reflected that the plaintiff conceded he was a Marxist. 750 F.2d. at 972, 987. 

Further, the record reflected that the Washington Post published a letter from the plaintiff 

responding to the defendants’ article four days after the article appeared. Id. at 973. CNN has given 

Plaintiff no similar opportunity to address its audience fairly--that is not a page from CNN’s 

playbook. Moreover, while these cases involve evocative terms, they do not rise to the degree of 

attack—or trigger the same level of animus—as the allegations set forth in the Complaint.

b. The Statements at Issue Are Identified as False.

15 Note that the Plaintiff addresses actual malice in Section IV. A. of this Reply. 

16 Defendant cites a Second Circuit case, Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), and a 

D.C. Court of Appeals case, Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), as examples in 

which the descriptions “fascist” and “Marxist” were found not to be defamatory. Neither of these 

cases were decided on a motion to dismiss. 

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Defendant contends that “nowhere does the Complaint actually allege a specific false 

statement of fact in the Publications.” Motion at 8. The falsity of each statement is explicit in the 

Complaint. See, e.g., Compl. ¶¶ 39, 42, 48, 49. It is also inferred when the Complaint alleges that 

CNN is liable “for the harm it has caused to [Plaintiff’s] reputation by the false, defamatory, and 

inflammatory mischaracterizations of him,” Compl. ¶ 36, and the Court can rely on reasonable 

inferences drawn from factual allegations in denying a motion to dismiss. Sec. & Exch. Comm'n 

v. Complete Bus. Sols. Grp., Inc., 538 F. Supp. 3d 1309, 1321 (S.D. Fla. 2021) (internal citations 

omitted) (“When reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as 

true all factual allegations contained in the complaint, and the plaintiff should receive the benefit 

of all favorable inferences that can be drawn from the facts alleged.”). The extent of falsity is 

properly alleged and should be for the trier of fact.

F. Defendant Misconstrues and Misapplies the Plausibility Standard.

Federal Rule of Civil Procedure 8(a)(2) requires only that a complaint provide a “short and 

plain statement of the claim showing the pleader is entitled to relief.” Twombly, 550 U.S. at 555 

(internal quotation marks and citations omitted). The plaintiff is not required to provide “detailed 

factual allegations,” but instead, need only “state a claim for relief that is plausible on its face.” Id.

at 555, 570. A claim has facial plausibility when the plaintiff pleads factual content that “allows 

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The ultimate persuasiveness of Plaintiff’s evidence is not relevant to the Court’s 

plausibility analysis. To the contrary, courts caution “against equating plausibility with an analysis 

of likely success on the merits.” Bella Int’l, LLC v. Armbruster, 2020 WL 813666, at *3 (D.P.R. 

Feb. 18, 2020) (internal quotation marks and citations omitted). It is not Plaintiff’s role to convince 

the court that its factual allegations ultimately will prove persuasive to a fact finder. At the motion 

to dismiss stage, “it is not the district court’s province to dismiss a plausible complaint because it 

is not as plausible as the defendant’s theory. The test is whether the complaint is plausible, not 

whether it is less plausible than an alternative explanation.” Palin v. New York Times Co., 940 F.3d 

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804, 815 (2d Cir. 2019). Defendant’s theory of what is factually plausible is irrelevant to the

Court’s analysis at this stage. 

Defendant argues that Plaintiff’s “overall theory of falsity for the ‘Big Lie’ is implausible,” 

given that the average audience-member “would not plausibly understand ‘Big Lie’ to be an 

allusion to Nazis (as opposed to just a lie that is ‘Big’).” Motion at 9. Simply put, Defendant argues 

that it is not believable that the average CNN viewer would understand CNN’s reference to the

“Big Lie,” as a reference to Nazi propaganda. Id. This argument is both incorrect and confuses the 

relevant inquiry: An implausible complaint is one that fails to allege a legal theory that prevails if 

the facts as alleged are true, not one that asserts facts which the defendant contends the fact finder 

should not believe. See Lait v. Medical Data Sys., Inc., 755 Fed.Appx. 913, 916 (11th Cir. 2018).

This Court’s recent decision in Dershowitz is instructive as to the requisite showing of 

plausibility in a defamation claim and, in particular, that a plaintiff need only show that some

average viewers could understand the statement to be defamatory. 541 F.Supp.3d at 1354. In 

Dershowitz, the plaintiff alleged that CNN broadcasted a “truncated clip” of plaintiff’s statements 

during President Trump’s impeachment trial to “‘fool its viewers’ into believing that [the plaintiff] 

actually said that a President could commit illegal acts so long as he thought it would help his 

reelection and that his reelection was in the public interest.” Id. at 1368. The plaintiff contended 

that because CNN had only played a portion of the clip, it had taken his statements out of context 

to lead viewers to believe he had “‘lost his mind.’” Id. But the complaint also acknowledged that 

CNN had played the entirety of the clip earlier in the day. Id. at 1359 n.2. This Court held that “the 

fact that CNN played Dershowitz’s entire statement earlier in the day” did not preclude the plaintiff 

from plausibly alleging defamation. Id. at 1369. The Court reasoned that while “some viewers may 

well have been able to put the truncated clip and the commentator’s statements into context,” 

others, who had not seen the earlier broadcasts, may have viewed Dershowitz’s statements through 

the defamatory lens alleged by the plaintiff. Id. (emphasis added). Although the alleged defamatory 

meaning may not have been understood by all viewers of the broadcast, the fact that some viewers 

may have construed the defamatory meaning was enough to survive the defendant’s motion to 

dismiss. Id. The same result should be reached here.

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Plaintiff has plausibly established that, given the language in CNN’s publications and 

broadcasts, at least some CNN viewers understood the defamatory meaning behind the network’s 

statements addressing President Trump’s election integrity concerns. Specifically, Plaintiff’s 

Complaint provides numerous examples in which CNN used the phrase the “Big Lie,” to create a 

defamatory association between President Trump and Hitler, the Nazis, and authoritarian 

leadership. For example, one such article cited in Plaintiff’s Complaint libelously calls President 

Trump “a leader of authoritarian intentions and tendencies.”17

Given these articles directly, explicitly, and falsely assert a connection between Plaintiff

and Hitler-styled authoritarianism, Defendant’s argument that the average viewer would not know

the “Big Lie” allusion is without merit. Even if the average CNN audience-member is unaware of 

the linguistic origins the “Big Lie,” CNN’s reporters established the defamatory connection for 

them. As alleged throughout the Complaint, CNN has featured guests and anchors who 

consistently have wrongfully asserted an association between President Trump and Hitler, 

attempting to drive the point home to the average viewer. 

CNN’s less direct references to President Trump and Nazism still would be viewed as a 

clear association by the average viewer. For example, juxtaposing President Trump’s election 

integrity claims against images/discussions of Nazis sends an undeniably defamatory message. 

Specifically, Plaintiff has provided examples of reactive tweets posted by CNN viewers praising 

CNN for so clearly illustrating the “parallels” between the “rise of Hitler,” and President Trump’s 

election integrity concerns. Compl. ¶ 17. 

Even if this Court does not consider these tweets to be evidence of what every average 

CNN viewer understood, dismissal still would not be appropriate, since they prove that certain

average CNN viewers did fall prey to the defamatory statements. At a minimum the term should 

be considered ambiguous and thus susceptible to defamatory meaning.18 Under such 

17 Compl. ¶ 28 (citing Ruth Ben-Ghiat, Trump’s big lie wouldn’t have worked without his 

thousands of little lies, CNN, (Jan. 25, 2021), https://www.cnn.com/2021/01/25/opinions/big-lieben-ghiat/index.html). 

18 As noted in the Complaint, false comparisons to Hitler have historically been considered 

defamatory. See, e.g., State v. Guinn, 347 S.W.2d 44, 46–47 (1961) (holding that publication in a 

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circumstances, “it is for the trier of fact to decide whether or not the communication was 

understood in the defamatory sense.” Wolfson v. Kirk, 253 So.3d 774, 77-79 (Fla. 4th DCA 1973).

Importantly, CNN does not suggest that characterizations of an individual as Hitler-like are 

not susceptible of defamatory meaning. Rather, CNN invites this Court to accept its theory that it 

is unlikely that a CNN viewer would understand the network’s false characterizations of President 

Trump to actually be wrongful references to Hitler and Nazism. In essence, Defendant has asked 

this Court to play factfinder and evaluate the persuasiveness of the factual contentions supporting 

Plaintiff’s claims.

V. Conclusion

Although “vigorous reportage” of political figures is “necessary for the optimal functioning 

of democratic institutions,” the press is by no means provided with “absolute immunity in its 

coverage of public figures[.]” Harte-Hanks Commc’ns, Inc., 491 U.S. at 687-88; see also Curtis 

Pub. Co. v. Butts, 388 U.S. 130, 150 (1967). 

In CNN’s Motion, it asserts its “news” reporting to be rhetorical hyperbole, opinion, and 

unverifiable, nonfactual statements, and as such claims that it is protected from liability under First 

Amendment principles. It shockingly does so while holding itself out as a premier news source. 

Defendant’s arguments only support Plaintiff’s contention that CNN is indeed “fake news.” But 

this does not excuse Defendant from liability for defamation, as this Court need not accept as true 

its assertions. Rather, on a motion to dismiss, the Court must accept as true all of Plaintiff’s factual 

newspaper that a District Attorney General used “Hitler-like tactics” in his investigations was 

libelous per se because “[w]hen we apply this term to a District Attorney General, who is a 

quasi-judicial officer representing the State, and who is presumed to act impartially and in the 

interest of justice, it clearly infers that this officer in his acts is guilty of official oppression.”) 

(emphasis added); O’Donnell v. Philadelphia Rec. Co., 51 A.2d 775, 777 (1947) (holding that 

defendants committed libel per se when they accused a news reporter of being a Naziphile in 

sympathy with Hitler’s liquidation of Jews); and Goodrich v. Rep. Pub. Co., 199 S.W.2d 228, 

230 (Tex. Civ. App. 1946), writ refused (finding publishing company liable for libel per se for an 

article stating the plaintiff was pro-Nazi). 

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allegations. Consequently, this Complaint is sufficiently pled to support proceeding to a jury trial 

on the merits.

Dated: December 30, 2022 Respectfully Submitted,

 /s/ Lindsey Halligan

Lindsey Halligan

Florida Bar No. 109481 

511 SE 5th Avenue

Fort Lauderdale, FL 33301

Telephone: (720) 435-2870

Email: lindseyhalligan@outlook.com

 /s/ James M. Trusty

James M. Trusty

Pro Hac Vice

Ifrah Law PLLC

1717 Pennsylvania Ave., N.W. Suite 650

Washington, DC 20006

Telephone: (202) 524-4176

Email: jtrusty@ifrahlaw.com 

Attorneys for President Donald J. Trump

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