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Let’s begin…

Last week, I was in Kansas City for a gathering of media lawyers—one of those slightly anxious, take-the-temperature-of-the-moment affairs. The topics ranged widely: the arrest of Don Lemon, the raid on Washington Post reporter Hannah Natanson’s home, and the not-so-small matter of what all this is doing to publisher insurance premiums. I joined a panel on weathering the storm, where we swapped war stories and floated strategies for what comes next. (I offered my own mildly heretical view that media outlets, and their reporters, should consider going on offense in libel cases more often.)

It was a lively discussion. One idea, in particular, stuck with me—a legal argument I hadn’t heard before, but suspect we’ll see tested soon. Namely, that while he’s president, Donald Trump may have to give up one of his favorite pastimes—bringing defamation suits.

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The proposition came from David Korzenik, a partner at Miller Korzenik in New York who is no stranger to swinging for the fences. He’s the architect of author Michael Wolff’s pending case against Melania Trump—the one that flipped her demand letter over a Jeffrey Epstein story into a New York anti-SLAPP action, with Wolff seeking a declaratory judgment that he committed no libel, along with discovery into Trump–Epstein connections and, ultimately, damages. (Disclosure: Miller Korzenik has provided legal advice to Puck.)

Korzenik’s latest theory: If the president truly embodies the executive branch, as Trump has been arguing throughout his second term, then actions taken in his official capacity are, in effect, actions of the government itself. By that logic, a defamation suit brought by the president isn’t merely a personal claim, it’s a government suing a critic. And because courts have long been wary of government entities policing speech, the “unitary executive” framing would suggest such cases should be barred—or at least sharply constrained.

This isn’t entirely out of left field. It echoes New York Times v. Sullivan, the Supreme Court’s landmark 1964 decision that requires public officials to prove “actual malice” in defamation cases. Less remembered is that Justices Hugo Black and William Douglas would have gone further. In a concurrence, they argued the First Amendment should categorically bar public officials from recovering damages for criticism of their official conduct.

At first glance, that kind of absolutism feels out of step with the current court, where conservatives Clarence Thomas and Neil Gorsuch have openly mused about revising Sullivan in the opposite direction. But there’s a twist. It’s the Trump administration itself that has aggressively advanced the “unitary executive” theory—centralizing control over the bureaucracy, asserting dominance over the Justice Department, blowing boats allegedly piloted by drug runners out of the water, and, most consequentially, securing a 2025 Supreme Court ruling granting the president broad immunity for official acts. If Trump can’t be held liable for much of what he says (or does) in office, no matter how outlandish, incendiary, or defamatory, why should he be able to haul others into court over it?

Judges are beginning to grapple with that tension. As Penn State law professor Amy Kristin Sanders noted during the panel, Florida District Judge Kathleen Williams is confronting a version of it as she presides over Trump’s $10 billion suit against the I.R.S. over leaked tax documents. How, exactly, does a president—who embodies the executive branch—turn around and, in his personal capacity, sue agencies he oversees? Are the parties truly “adverse”? The court has ordered a briefing.

In the meantime, Trump is still playing his greatest hits, pursuing a blitz of litigation against the BBC over a January 6 documentary; the Des Moines Register over pre-election polling; and the Pulitzer Board over prizes awarded years ago—alongside efforts to revive failed claims against CNN, The New York Times, The Wall Street Journal, and others. Members of his administration are joining in, too—F.B.I. director Kash Patel recently filed a $250 million defamation suit against The Atlantic for an article purporting to document his allegedly excessive drinking and erratic behavior. At some point, one of these cases may do more than wrestle with what’s true and what reporters knew at the time of publication. A case brought by Trump or his administration may test the notion that these plaintiffs don’t belong in court in the first place—and, if Korzenik is right, ultimately shut the whole enterprise down.

Fox News might consider trying the argument that public officials are barred from bringing defamation actions over what’s said about them. Fox, after all, is now struggling with a case brought by California Governor Gavin Newsom. His $787 million suit just survived a motion to dismiss, meaning a politician currently polling as a plausible presidential contender is heading into discovery against the highest-rated cable news network. Why isn’t this getting more attention?

The case stems from Fox’s coverage of civil unrest in Los Angeles. At a June 10, 2025, White House press conference, a reporter asked Trump when he last spoke with Newsom. “A day ago,” Trump said. Newsom quickly fired back on X: “There was no call. … Americans should be alarmed that a President deploying Marines onto our streets doesn’t even know who he’s talking to.” Trump later showed Fox’s John Roberts a screenshot of a call on June 7, and Fox reported that the conversation had in fact occurred, with Jesse Watters adding, “Why would Newsom lie and claim Trump never called him?”

Newsom says that crossed the line. His point was that he was disputing Trump’s claim of a call “a day ago,” not denying that they’d spoken at all. The call happened—just not when Trump said it did. Is that really the stuff of a $787 million defamation claim? Count me skeptical.

Yet in an April 30 opinion, a Delaware judge allowed the case to proceed. First of all, why Delaware? The court’s answer was essentially, why not Delaware? (The more practical explanation, of course, is that Newsom saw a favorable forum in a state where Fox previously fought Dominion.) Then, peering through a notably permissive jurisdictional lens, Judge Sean Lugg concluded it was at least “reasonably conceivable” that an average viewer could take Fox’s reporting as a false statement about Newsom’s honesty, and one made with actual malice.

I’ll be blunt: It’s a thin reed. If Trump were suing CNN on the same basis, I suspect the media reaction would be far more severe. To be sure, the California governor has been engaging in a bit of Trumpian theater himself, and this lawsuit may be as much about political signaling—projecting toughness to his base and turning the tables on conservative media—as legal vindication.

Still, there’s a strategic question lurking here. Suits like this risk normalizing the very playbook that many in the press have criticized, handing Trump and his associates an easy talking point that both sides are using litigation to police speech. F.C.C. chair Brendan Carr has already pointed to Newsom’s lawsuit, amplifying the rancorous public feud between the two men. That alone suggests this deserves a closer look.

Thanks, Eriq. I’ll see everyone on Thursday.

Matt

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