Trump vs the BBC…what happens next?

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1:11Donald Trump has doubled down on this threat he made to sue the BBC for the way it edited a section of his speech that he gave on January the 6th in 2021. The edit of that speech was part of a Panorama documentary that came out before the election in October of last year. This is what Donald Trump has now told Laura Ingraham on Fox News this week. But tonight you are saying to our viewers that you will go forward and file a defamation lawsuit against the BBC. Well, I think I have an obligation to do it because you can't get people, you can't allow people to do that. So the BBC says it has seen the legal letter from President Trump's people and that it's going to respond directly in due course.

1:51That's to quote the BBC. But the question now is, how exactly will the BBC respond? How strong a case does the president have against the BBC when it comes to an issue like defamation? And what could happen if the BBC decides to take him on in court? We're going to try and answer all of those questions and lots more on today's episode. Welcome to AmeriCast. AmeriCast. AmeriCast from BBC News. When Donald Trump calls, they say, yes, sir. Right away, sir. Happy to lick your boot, sir. We are the sickest country in the world. Oh, dear. Are you worried that billionaires are going to go hungry? Of course the president supports peaceful protests.

2:30What a stupid question. Are you still talking about Jeffrey Epstein?

2:41Hello, it's Anthony at the BBC Bureau in Washington, D.C. And it is Mariana in the worldwide headquarters in London. All right. In a little bit, we're going to be talking to a friend of the podcast, CNN senior legal analyst, Ellie Honig. He has covered a lot of Donald Trump's legal cases, and he's going to be able to explain a little bit about what kind of case Donald Trump would have against the BBC if he does follow through with his threat to bring a lawsuit. Trump is threatening this legal action against the BBC. He hasn't actually filed it yet, but he's threatening it. And he did this interview.

3:18It was recorded on Monday, but the bit that was about the legal case and the BBC was released on Tuesday night. It was an interview with Laura Ingram on Fox News. Here it is. Going ahead and suing the BBC? Well, I guess I have to, you know, why not? Because they defrauded the public and they've admitted it and their top echelon. This is within one of our great allies. You know, this is our supposedly a great ally, BBC have the government has a chunk of that one, I guess. But that's a pretty sad event. They actually changed my January 6th speech, which was a beautiful speech, which was a very calming speech.

3:56And they made it sound radical and they actually changed it. What they did was rather incredible. They're showing me the results later on, the results of what they did, how they butchered it up. But it was very dishonest. And the head man quit. And a lot of the other people were actually going to play it. But tonight you are saying to our viewers that you will go forward and file a defamation lawsuit against the BBC. Well, I think I have an obligation to do it because you can't get people, you can't allow people to do that. I think I have an obligation to do it. I guess I've got to do it. I mean, he doesn't sound entirely certain that this lawsuit is going to go ahead.

4:34And maybe that is because there's a deadline for the BBC to respond on Friday. this letter spelled out what the BBC has to do, which is issue an apology and a retraction and some form of compensation for harm done to Donald Trump. So maybe he's just waiting for the BBC to respond. But we've had these lawsuits in the past against media companies here in the US, and Donald Trump hasn't telegraphed them in advance. He's just done it. So it's a little different here. Yeah, I was going to say, Anthony, that that was my first impression when I when I heard this interview as well, was that he didn't seem as certain and forthright as he has in relation to some of the other legal cases that he's taken about media.

5:21And to that point as well, that he hasn't tended to take this two pronged approach of making a threat and then seeing how the organisation responds and then deciding to take action. Before we move on to this wider discussion about the legal case, I do think that there are a couple of things that Donald Trump says that is worth us talking about or mentioning, just where he says the government has a chunk of that one about the BBC. The BBC is funded by the licence fee payer, and it's not a government-run, state-run broadcaster. That's just not how the BBC works. And the BBC has acknowledged that there has been a mistake.

5:54And then also, it's interesting, I mean, Donald Trump describes his speech as beautiful, a very calming speech. It made me sound radical. There are lots of things that Donald Trump says that are much more conciliatory. But it is also worth saying that there are things that he says. He uses the word fight on multiple occasions. And there's other language that's very inflammatory that he uses. And after that speech happened, the Capitol was stormed in effect by quite a lot of his supporters. And as we all kind of know what happens next. Right. And that speech, and I remember listening to it live, it was a typical Donald Trump speech.

6:27It was all over the place. There were portions of it, as you mentioned, that talked about fighting, talked about losing the country, talking about how important it was to stop the steal in his view of the election. And this was the moment that they could do that. And he did on multiple occasions talk about peacefully demonstrating. And that is something that those of us who cover Donald Trump deal with frequently is that when he makes public comments, they can be taken different ways depending on how you look at it. And listening to the whole thing can often give you multiple different impressions of what he really means.

7:04And sometimes there's confusion about what he means. But all of that could come out in a lawsuit and all that could become the focus of a lawsuit if Trump decides to bring it. We've obviously spent quite a lot of time discussing the other legal cases to do with the media. And to be honest, I didn't actually imagine a world where we would be talking about it in relation to the BBC. But now we are. And it's important for us to understand what that means, both in terms of how Donald Trump works as a president and his sort of tactics and strategy and response. And then also what this kind of means for the media more generally, the standards that they're held to, what it means for their freedom and ability to express themselves or not, and what happens when, yeah, when mistakes are made.

7:48Right. And as I mentioned, the BBC has until Friday, according to Trump's lawyers, to make a decision on this. And if the BBC follows the precedent set by other major media groups here in the United States, at least some of them that have been sued by Donald Trump and and strike some sort of a deal, you could see a similar kind of a way that Donald Trump will respond to that. He claims vindication with the settlement with ABC News, where George Stephanopoulos talked about Donald Trump being convicted of rape. But in fact, it was a sexual assault civil settlement. He claimed victory and vindication in his lawsuit where CBS settled the editing of of an interview with Kamala Harris before the 2024 presidential election that Trump alleged change or misrepresented things that Harris said in a way that was positive for the Democrats.

8:44And and he now points to that and say and says, see, the media is attempting to tilt the playing field towards towards the Democrats. And you could see him pointing to whatever resolution, if it's a positive one for him, in this case saying, see, this was a perfect speech. See what I said on January 6th prior to the attack on the Capitol did not contribute to the violence that took place afterwards. But in fact, he was he was giving a calm speech as he characterized it there. So, you know, there's there's the legal aspect of it, the media aspect of this. But there's also a much larger kind of political battle on how history looks at January 6 and how history judges Donald Trump and the actions he took prior to the attack on the Capitol.

9:34And public perception, I will say, has changed fairly significantly from those days, weeks, months after January 6th and 2021 to where it is now, where the views of what happened on that day are very sharply divided along partisan lines, where if you talk to Donald Trump supporters, they will they will agree with Trump saying that he didn't instigate those attacks. And if you talk to people on the left, they will say, you know, listen to the context of the entirety of that speech. Look at what happened afterwards. Look at everything that Donald Trump did leading up to that speech. And they will say, in their view, that that Donald Trump certainly did contribute to the violence.

10:14So you have a very, as with many things here in this country, a very, very sharply divided, polarized on political lines kind of view of of facts and and incidents that are in the public record. Yeah, I think that change in the perception of January the 6th and what that therefore means in terms of reputational damage or not is a really interesting one. And something along with lots of other things that we are hoping to get into with our guest, Ellie Honig, who I think has joined us now. Ellie is CNN's senior legal analyst and friend of the pod. Hi, Ellie. Great to be with you. Thank you for bestowing the status upon me.

10:51Officially a friend of the BBC pod. That's an honor. There you go. Do people have to call me sir now or is that not how it works? Not quite. They have to call you king. No, I'm joking. Well, let's start off with the, I guess, the$1 billion question here. And that is, does Donald Trump have a case against the BBC? Right. So the basis of this threatened lawsuit is a piece that the BBC ran doing a sort of after the fact, look back at January 6th. And the crux of the matter is there's a point where the BBC show shows an edited piece of the speech that Donald Trump made on the ellipse outside the White House shortly before the actual attack on the Capitol.

11:35And Trump's stated allegation and concern here is that that speech that he gave, which lasted close to an hour, was selectively edited in a way that makes it sound like he said something that he did not say, in a way that makes it sound like he more explicitly called for violence than he actually did. So that's the crux of the dispute here. Clearly, I mean, there's no dispute that the clip was edited. And the question is, was the dispute edited in a way that's misleading and damaging to Donald Trump and in a way that could give him rise, we'll see, to a defamation lawsuit? Will he win? Who knows?

12:14There's all sorts of gray area. We can get into that. It's really important though to understand how defamation law works here in the United States because it is different from how it works in England. In fact, the bar is higher here. It's harder to prove and win on a defamation lawsuit in the United States than it is in England and I think other parts of the world. So the phrase, the key phrase to keep in mind is called actual malice. That comes from a U.S. Supreme Court case from 50 some years ago. It's New York Times versus Sullivan. If you ever hear people refer to it, that's what they're talking about.

12:46The burden, first of all, of proof is on the plaintiff. So if there's a lawsuit, Donald Trump is going to have to prove his case. Not beyond a reasonable doubt that's for criminal cases here. It would just be the more likely scenario, what we call a preponderance, 50.1%. He'd have to show as the plaintiff two things. One, that this statement made about him, or I guess in this case, the editing was false, that a false statement was made about him or that the clip of him was edited in a way that falsely portrays what he said. So The second element is that that false statement was made knowingly by, in this case, the BBC or with reckless disregard of the truth.

13:29So you'd have to show here that BBC made or created a false statement and that they knew it was false or they were recklessly in disregard of whether it was true or not. One thing that interests me, Ellie, is when we talk about defamation here in the UK, we we try and understand what someone's reputation might be with regards to something and therefore what what the damage could be it feels like how people felt about january the 6th even last october was kind of different to how they feel about it now and then also there's this added thing of this is a british documentary um which i think was not easily available in the us did any of those things play into like for example the suggestion that there wasn't reputational damage at the time or that it wasn't available to people in the States.

14:16Would that affect his case at all? So it will not affect whether the BBC is liable. What it will affect is damages. So let's assume in any case, if a plaintiff can show those elements that I just talked about, the falsity and the knowing falsity or the reckless falsity, then you have to get to a question of, well, how much money has to be paid to this person? And really here in the United States, there's two main components of that. One is financial law. So if, for example, you were a plaintiff and you could say, these harmful statements were made about me and I lost a job opportunity as a result, or I was fired and therefore I lost X number of dollars.

14:53The second part of that is what you were just talking about, Mariana, which is reputational damage. Now, there's no calculator that can mathematically calculate this. You have to argue it to the court. And I think, you know, how widely seen a piece is could certainly factor in on that. I mean, if it was on CNN here in the United States and everyone saw it, it would arguably be different than something like you described, which was done in a different country and wasn't widely available or perhaps widely viewed here. I guess there's a question though, as to how long a time period, that reputational damage, right?

15:26Because if it wasn't seen back then, it certainly is being seen now, although people do know now that the allegation is that it was false. So yes, reputational damages do matter. And they would be something that the plaintiff again would have to prove in convincing a judge or a jury how much should be awarded. So if this took place entirely outside the U.S., say no one, and you can't prove that obviously, but no one in the United States saw this at any point when it aired, can you still sue for reputational damage of something that happened purely overseas? Oh, well, it may be damaged his reputation in the U.K., but not in the U.S., not in Florida.

16:04Is that still a cause of action to bring a lawsuit in Florida? You still could. I mean, look, the BBC has operations, extensive operations in the United States. That's why it's possible to sue them in the United States. It's an interesting question you raise about reputational damage. I think what Trump's team would probably argue here is if his reputation takes a serious hit in England, in Europe, look, we live in a modern world and everybody, everything's sort of interconnected. It's not like the old days where you had to send messages by, you know, by horse or by boat. People see things and people, you know, cross cultures and reputational damage in one country is necessarily going to spill into another.

16:45So there's an interesting wrinkle in that, though, and that would be something that would have to be litigated. While we talk about money and damages, when it comes to this one billion dollar figure, how has he come up with that? thin air. I mean, and that's not necessarily a knock, but how would one precisely calculate reputational damage or economic damage? And look, you see this in lawsuits all the time. When you're the plaintiff and Donald Trump might end up, you know, if he does bring the suit, he'll be the plaintiff. You just drop a number into your complaint. And those numbers are ridiculous.

17:17And I do think it's worth noting just for those of us in media. Yes, we should report and we need to report, well, the claim here is for$8 billion or$150 ,000, whatever. There's no science to those numbers. They're not binding. It doesn't mean the judge, for example, would ultimately have to decide, well, it's all or nothing, as in some instances. But yeah, no, it's more of a placeholder. People get carried away with those. People put in outrageous numbers, maybe sometimes to raise eyebrows. But ultimately, the amount of the damages has little to nothing to do with whatever number the plaintiff claims, it's really up to the individual fact finder, the judge or the jury.

17:56Now, Marianne and I talked about some of these other instances, the ABC case, the CBS 60 Minutes case, ones that were settled by the media companies with Donald Trump. There are some other instances like Wall Street Journal lawsuit that still seems kind of up in the air. New York Times, one that a judge threw out. None of them ever saw the inside of a courtroom during trial. Why is that? I mean, is there a greater likelihood you think that this BBC case, if it does happen, will somehow go away before we get to a courtroom as well? So that's actually going to be up to the BBC if there's a lawsuit, because each of these corporations has to make a decision.

18:34Do we, and this applies to any defamation case, any civil lawsuit. Is it better for us? Is it worth our time? Is it better risk management to agree to some settlement payment for X? or do we want to take the risk of going to trial and potentially getting hit with a much bigger verdict? I do want to note one thing. You just peeled off three or four different defamation lawsuits that Donald Trump has brought and threatened to bring. This is completely unlike anything we've seen in U.S. history. I believe, certainly no modern president, but I believe there has never been any U.S. president while sitting in office who has sued a media organization for defamation.

19:14It's long been just accepted. Well, if you're the president, you're going to take slings and arrows and you're the number one target of press coverage and number one subject of press coverage and just sort of goes with the territory. So the fact that Trump is, there's nothing in the law that prohibits him from bringing these cases, but the fact that he's bringing them is fundamentally different. And as to those cases you mentioned before, the CBS, the ABC, Wall Street Journal, and New York Times, all of them, I think, have different merits. I think some of those lawsuits had some legitimacy. I think others had close to zero legitimacy.

19:46But, you know, as to why, let's take the CBS, the 60 Minutes lawsuit, which CBS settled for, I forget if it was 15 or$16 million. The argument there was that CBS had selectively edited an interview, not with Donald Trump, but with Kamala Harris, his electoral opponent, shortly before the 2024 election. I think virtually every legal expert, and I join in this, has said that Trump had almost nothing there in terms of substance. You can't sue because they make someone you don't like look better. That's not what defamation law is. Nonetheless, CBS made the decision to settle. And I would imagine, I would speculate that their reasoning was better to just pay this amount than to A, risk going to trial and getting hit with a bigger verdict, and B, having to tangle with the president of the United States, the most powerful person in the country and probably the planet.

20:38So these are complicated calculations that have to be made. And what happens if the BBC just don't engage at all, if they just don't get back on this pending threat? I mean, I think that that option is probably unlikely, but nonetheless. So now I guess we're getting into the poker element of this, right? The question I would be raising if I were behind the scenes and had been threatened, well, if you don't respond by Friday, I will sue you, is do we believe this? And then if we do, then back to the calculation I just talked about. But I guess there's a perspective or an approach of, we think he's bluffing.

21:11We don't think he's actually going to sue. If I was in that room, I'd say, look at his history in the past. I mean, he's been very aggressive in suing, including in some cases. I mean, the New York Times case, for example, is ridiculous. It's basically just, I don't know, they're negative to me and it's not fair. I mean, that thing is going nowhere, in my view, going nowhere. So I would say if you have any doubts about whether he will actually sue, look at the history. It doesn't guarantee a result, but he has no compunction about, no hesitation about suing. We spoke about the other cases like CBS, for example, and the decision to settle.

21:48Do you think that there were other forces at play, other dynamics at play in terms of why settlements were reached and that that calculation is different for the BBC in that way in terms of like parent companies or other other background noise. I guess the flip would be that we've got a more complex diplomatic situation on our hands, even though the BBC are separate from the government. Well, so let me say this. In any case involving Donald Trump, any defamation case, in addition to all the elements that we've talked about, all the risk calculations, trial and discovery, there's an extra factor, which is this guy's the president and he has the levers of power at his control.

22:24And he has at times used and threatened to use the FCC, for example, the Federal Communications Commission to punish, regulate media outlets. Certain types of corporate transactions and mergers need approval from the federal government, the federal executive branch. So it's an extra layer of complication that has to be factored in here. I mean, this is not just your average celebrity or movie star or even just average member of Congress. This is the president of the United States. So sure, there are political factors that you'd want to take into account. There are, you know, the usual economic factors.

23:05There are diplomatic factors. So yeah, it's, you know, like you said earlier, and I agree with this, Mariana, we do overuse, and I really try to not use the word unprecedented, but there is not a precedent for a string of defamation lawsuits brought by a modern sitting U.S. president. Yeah, he is the president, Ellie. I mean, White House is just about 15 minute walk down the street from here. That's where he lives. I see him there pretty regularly. Why is this lawsuit being filed thousand miles away in South Florida? Because he's a resident of South. He's legally a resident of Florida. He actually moved his official residency a few years ago from New York.

23:43He used to live in the tower there down to Florida. And so generally speaking, under U.S. law, if you're a plaintiff suing and claiming you've been damaged, you do have the option of suing in your state of residence. So, you know, there was speculation at the time, why is he, why is he doing this? And one of the theories is he thinks it gives him a better forum to bring lawsuits and maybe to defend himself in lawsuits. So, but I think as a practical matter, if I was on Donald Trump's team, I would say you're going to get a much, just in terms of your popularity, you're going to get a much better jury in Florida.

24:12Donald Trump won Florida both times. I think all three times he ran 2016, 20 and 24. And he got creamed in D.C. I think it was his actual worst state. He got something like 15 to 20 percent of the vote in D.C. all three times. So I would say, look, this jury pool, you know, we pull our juries from randomly from civilians and odds are you're going to have a lot more Trump voters and Trump supporters on a Florida jury than you will on a D.C. jury. Thank you so much, Ellie, for that. It was so interesting. And I answered so many of the questions that I have certainly been thinking about sitting at my desk.

24:46Thank you both. I appreciate it. Have me back if there's a lawsuit. We can talk about it then.