What to know about First Amendment issues in Trump's lawsuit against Wall Street Journal
President Donald Trump's lawsuit against the Wall Street Journal, filed in South Florida, raises potential First Amendment concerns regarding freedom of the press, speech and accountability.
The Wall Street Journal reported July 17 about a leather-bound birthday book given to the late multi-millionaire investor and convicted sex offender Jeffrey Epstein in 2003 for his 50th birthday, with letters from friends and family — and one of them bearing Trump's signature.
The president's attorney in Miami promptly filed a federal lawsuit against the Journal, its publisher, its parent company, two executives and the two reporters who wrote the story.
The suit is significant because it presents challenges to multiple First Amendment issues: defamation, freedom of press, freedom of speech and state laws that are meant to protect speech from costly lawsuits.
The federal filing comes at a time of nationwide clamor to pressure the Trump administration to release documents related to Epstein's case, where online conspiracy theorists and even Democratic and Republican members of Congress alike have encouraged releasing more information.
Here's what to know about the suit at a time when Trump has been scrutinized nationally for deflecting focus away from the Epstein matter:
WSJ may SLAPP Trump's $10 billion lawsuit away
Florida is one of 38 states with anti-SLAPP laws in place, which are meant to protect free speech.
SLAPP stands for Strategic Lawsuit Against Public Participation, a type of lawsuit intended to intimidate, silence, or punish critics by burdening them with the cost of a legal defense, even if the case lacks merit. SLAPPs are often used against individuals or organizations who speak out on matters of public interest, such as journalists, activists, or whistleblowers.
Traditionally, whether anti-SLAPP state laws apply in federal court is a topic of controversy, but attorneys for the Journal could argue for Trump to pay its attorney fees using Florida's anti-SLAPP provision.
But the complaint against the Journal, in which Trump is requesting strikingly high damages of $10 billion, would fall under Florida's anti-SLAPP law, said David Keating, the president of the Institute for Free Speech.
A representative of the Wall Street Journal declined comment on the case, including questions of whether the newspaper would use the state anti-SLAPP law. A request for comment to Trump's attorney who filed the lawsuit, Alejandro Brito, is pending.
The nitty-gritty in this Florida case
This case was filed in the U.S. Southern District of Florida court by Trump's attorney in Miami, Alejandro Brito.
He also filed a 2023 lawsuit against Trump's then-attorney Michael Cohen for $500 million, saying Cohen violated attorney-client relationship. Trump dropped the lawsuit months later.
Obama-appointed U.S. District Judge Darrin Gayles will be presiding over Trump's lawsuit against the Journal. Gayles, who was the first openly gay Black man appointed as a federal judge, also oversaw Trump's case against Cohen.
A potentially short-lived lawsuit?
The Journal's case could have a similar fate to Cohen's – and end promptly in Trump's team potentially filing for dismissal. Cases involving the First Amendment have more complexity in proving whether defamation or libel are at play, said Lyrissa Lidsky, a First Amendment law professor at the University of Florida.
Lidsky said Trump's litigious background demonstrates a history of using suits strategically against his critics. She said the Journal's main battle is demonstrating the steps reporters took in verifying the reliability of the sources they used in the story.
"He knows that the filing of a defamation lawsuit could be a symbolic way to contest the truth that has been written about you, even if you never end up making it to trial," Lidsky said.
The First Amendment protects the press to write and publish without fear of government retaliation, but defamation is not protected by the First Amendment.
Defamation is the act of making a false statement about someone that harms their reputation. A person who claims defamation usually asks for financial damages from the person who defamed them.
Public officials have a higher bar in libel cases under the U.S. Supreme Court's New York Times v. Sullivan case. They have to prove "actual malice," meaning a news organization knew the information was false and acted with reckless disregard for the truth.
In many cases, journalists and media outlets are accused of defamation when it comes to news on high-profile court cases. Trump previously sued outlets like CNN, New York Times and the Washington Post for defamation over the past five years – and most of these resulted in dismissal.
This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Stephany Matat is based in Tallahassee, Fla. She can be reached at SMatat@gannett.com. On X: @stephanymatat.
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