Analysis-Trump's Wall Street Journal suit over Epstein story faces timing hurdle
(Reuters) -Donald Trump's legal case against the Wall Street Journal over a story about the U.S. president and Jeffrey Epstein could face hurdles, one of which is that it does not appear to comply with Florida state rules over the timing of defamation lawsuits, legal experts said.
If the case proceeds, Trump would need to clear a demanding "actual malice" standard that must be met by public figures to win in U.S. defamation cases. The standard means Trump must prove the paper knew the article was false or acted with reckless disregard for its truth.
The Wall Street Journal lawsuit is the latest in a series of cases Trump has filed against news outlets, and experts said his demonstrated willingness to sue could have a chilling effect on coverage of his administration even if the suit was ultimately unsuccessful.
Trump sued the Journal and its owners including Rupert Murdoch in Miami federal court on Friday, seeking at least $10 billion on each of two defamation counts. He said the newspaper defamed him in a July 17 report that said Trump's name was on a 2003 birthday greeting for Epstein that included a sexually suggestive drawing and a reference to secrets they shared.
Reuters has not independently verified the WSJ report.
A spokesperson for Dow Jones, the Journal's parent, said on Friday the company was confident in the accuracy of its reporting and would vigorously defend itself against the lawsuit.
Epstein died by suicide in 2019 while awaiting trial on sex trafficking charges. He had pleaded not guilty and the case was dismissed after his death.
Backers of conspiracy theories about Epstein have urged Trump to release investigative files related to the disgraced financier and sex offender.
Two lawyers with experience in defamation law said Trump did not appear to have complied with a Florida law requiring anyone bringing a defamation case against "a newspaper, periodical, or other medium" to notify the defendant at least five days before filing suit.
That means the judge overseeing the case, U.S. District Judge Darrin Gayles, would have no option but to dismiss the case if the Journal asked him to do so, though Trump may be able to re-file it, the experts said.
The Journal published its story on Thursday. In his lawsuit on Friday, Trump's lawyers said the Journal informed Trump about the forthcoming article last Tuesday, and they sent the paper an email that same day asserting that the article would be false and defamatory.
That timeline does not appear to comply with Florida's five-day notice law, said Marc Randazza, who said he had been practicing defamation law in Florida for more than 20 years.
"I don't even need to look at the merits of the case. The game is over," said Randazza of law firm Randazza Legal Group in Las Vegas. Randazza said Trump's case was "at least colorable" on the merits.
The White House deferred comment to Trump's lawyer in the case, who did not immediately respond to requests for comment.
Dow Jones declined to comment.
TRUMP MUST CLEAR HIGH BAR
In addition to the five-day notice hurdle, Trump would likely struggle to prove that the Journal acted with "actual malice," said Andrew Fleischman of law firm Sessions & Fleischman in Atlanta.
To back Trump's claim that the Journal knew the story was inaccurate, his complaint says the president informed the Journal before publication that the reporting was false.
Fleischman said a disagreement about the truth of an assertion is not enough to prove actual malice. Instead, Trump would need to demonstrate that the paper was deliberately lying.
The billions in monetary damages Trump was seeking is a "PR figure" designed to attract attention, said Fleischman, who frequently defends clients against defamation claims.
The figure would far exceed the largest defamation judgments and settlements in recent history, including a $1.3 billion judgment against conspiracy theorist Alex Jones, and Fox News' settlement with Dominion Voting Systems for $787.5 million.
Trump, a Republican who has pledged to "straighten out the press," has a mixed record in the numerous lawsuits he has filed against media outlets.
Judges have dismissed cases he brought against CNN, the New York Times and the Washington Post. More recently, television network ABC and CBS parent company Paramount have opted to settle cases brought by Trump.
Walt Disney-owned ABC News in December paid $15 million and publicly apologized for comments by anchor George Stephanopoulos, who inaccurately said Trump had been found liable for rape. Trump had been found liable of sexually abusing, but not raping, the magazine writer E. Jean Carroll.
Paramount's $16 million settlement came as the company seeks approval from U.S. regulators for its merger with Skydance Media. Trump had initially sought $10 billion in his lawsuit, which alleged CBS deceptively edited an interview with Democratic former Vice President Kamala Harris to favor her rival presidential bid.
Even if the Journal prevails, Trump's willingness to file claims against news organizations could have a chilling effect on journalists given the costs of defending against them, experts said.
BONGINO CASE DISMISSED
Trump would not be the first member of his administration to run up against Florida's five-day notice provision.
In 2019, podcaster Dan Bongino - who is now the deputy director of the FBI - sued online news outlet the Daily Beast for defamation over a story about his departure from the National Rifle Association's online video channel.
The case was dismissed the next year. U.S. District Judge Jose Martinez in Miami sided with the Daily Beast in finding that Bongino did not comply with the provision, but said the basis of his decision was that Bongino's case lacked merit.
Neither the FBI nor Bongino's personal lawyers immediately responded to requests for comment.
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