President Trump has threatened to sue the BBC for $1 billion over a documentary that his attorney claims used “malicious, disparaging” edits of his Jan. 6, 2021, speech. In a letter obtained by The New York Times, Trump’s lawyer demanded a full retraction, apology and damages—or else the outlet faces legal action seeking at least $1 billion. The dispute raises questions about defamation law, media accountability and the protections afforded to public figures.

Gregory Germain, professor in the Syracuse University College of Law, says the threatened defamation case would likely fail under established law. He shares more in the comments below. If you’d like to schedule an interview with him, please reach out to Vanessa Marquette, media relations specialist, at vrmarque@syr.edu.

Professor Germain writes: “Donald Trump’s threatened $1 billion lawsuit against the BBC is a total loser.
Donald Trump has threatened to bring a ‘$1 billion lawsuit’ against the BBC for releasing a documentary containing video of his speech in a misleading way, unless they pay him money.

“Can he sue the BBC for $1 billion? Sure he can. Anyone can sue anyone for anything they want, and can demand whatever number they want to make up in their demand. Why limit it to $1 billion? Why not make it a $1 trillion, or $1 zillion for that matter? The number demanded in the complaint is completely meaningless nonsense designed to get headlines. The right question is whether Donald Trump’s threatened defamation lawsuit would have any chance of winning, and the answer is clearly ‘no.’

“As a public figure, under the Supreme Court’s decision in New York Times v. Sullivan, 376 U.S. 254 (1964), Donald Trump would have to prove that the BBC acted with ‘actual malice,’ which is defined as ‘knowledge of falsity or reckless disregard for the truth.’ The test deals with false facts, not false or erroneous opinions or arguments. Was the BBC’s documentary, which changed the order of Donald Trump’s quotes to make it appear that he was more directly inciting violence before the invasion of the U.S. Capitol, factually false?

“No, the facts were not false. Editing video to change the order of quotes to make a point is what video editors do every day. Every YouTuber, and every news organization from both political sides, does the same thing. That’s what video editing is all about—to take video and edit it to make a point more clearly. While all video editing is, of course, technically misleading because context is important, viewers generally recognize that video is being edited to make a point.

“The BBC’s editing of the Trump speech may not have met the highest journalistic standards for integrity, as the BBC has itself recognized. But it was not a ‘false’ statement of fact within the meaning of New York Times v. Sullivan. Donald Trump’s attempt to pressure the BBC to pay him money, like he did by extorting a $16 million personal settlement from CBS with veiled threats of using government agencies to derail its pending merger with Skydance Media, smacks of political corruption and misuse of office. The BBC’s video does, after all, correctly display statements made by Donald Trump in his speech.

“Our free speech tradition in the United States, going back to the founding of the country, accepts unbridled political debate without judicial interference. The courts understand that their decisions must be applied equally to all, and a decision allowing political combatants to sue over political speech and criticism would embroil the courts in unending litigation and stifle the election process. Donald Trump, who is a champion of misleading debate, should know this better than anyone else. Just about everything our political candidates say is misleading in some way. It’s the job of journalists, not the courts, to ferret out the truth and point out what is misleading, hypocritical, and false in political debate. Ultimately, the courts in the United States properly leave political decisions to the electorate.

“Furthermore, to win the lawsuit and actually recover money, Donald Trump would have to demonstrate that he suffered quantifiable harm from the defamatory video. Jurors are not allowed to speculate; a claimant must provide the jury with a factual foundation for estimating an award of damages. Punitive damages awards need to be tethered to actual damages in a reasonable way. Even if Trump could get his threatened defamation case against the BBC to a jury, a large award would be highly unlikely.

“Ironically, the person most visibly raising concerns about runaway jury awards in defamation cases is Donald Trump himself. Donald Trump has asked the Supreme Court to review the $5 million judgment rendered against him in the defamation suit brought by E. Jean Carroll, and he is planning to ask the Court to review the second larger $83.3 million award which was recently upheld by the Second Circuit Court of Appeals.

“In my view, Donald Trump has an important argument to make in his Supreme Court petitions regarding the E. Jean Carroll awards. Multi-million-dollar punitive damages awards in defamation cases are serious threats to free speech. Jurors, often rightly offended by speech, can make up large numbers that have little to do with reality.

“I would not be surprised to see the Supreme Court hear Trump’s case and put limits on defamation and punitive damages awards. That’s especially true in Trump’s case, where the defamation relates primarily to his public assertion of innocence. Nevertheless, the positions he is taking in seeking review of the E. Jean Carroll verdicts are directly at odds with his far more dubious defamation threats against the media.

“Donald Trump’s $1 billion dollar lawsuit against the BBC for editing his public statements in a way he does not like would not, and should not, withstand a motion to dismiss under existing law, and he frankly has a much better chance of winning $1 billion with a lottery ticket than he does of recovering $1 billion from his faulty suit against the BBC.”