Are we about to finally exorcise the ghosts of New York Times v Sullivan? Or will Donald Trump cut another settlement notch in his media-war belt?
I know which way I'm betting.
Late yesterday, the BBC lost on a motion in federal court to dismiss a lawsuit from Trump over a news report aired just before the 2024 election. The BBC edited Trump's speech on January 6, 2021, without disclosing that manipulation, making it sound as though Trump had incited violence. Trump filed for damages on the basis of defamation, as well as under the Florida Deceptive and Unfair Trade Practices Act.
Judge Jeffrey Kuntz dismissed the claim under the FDUTPA, but pointedly refused to do the same with defamation. Kuntz noted that Trump had lost some similar cases in the past on the basis that news media reported on actual stories, even if they added commentary. In this case, Kuntz noted, the BBC cooked up a story – and then went way out of its way to promote the defamatory hoax:
In CNN, Judge Singhal concluded that “the complained of statements are opinion, not factually false statements, and therefore are not actionable.” Cable News Network, 684 F. Supp. 3d at 1274. In Dow Jones, Judge Gayles dismissed President Trump’s claims that the Wall Street Journal failed to adequately investigate claims it reported. Dow Jones & Co., Inc., 2026 WL 3270869, at *9.1
Those cases involved a news entity reporting on a story. Here, the news entity created the story. BBC admitted as much by confirming it had edited a video to make it appear as though President Trump made a statement he never made. And it acknowledged it chose to release the video in a documentary only a week before the 2024 Presidential Election, at the time it would have the most impact. To make sure it was seen in Florida, BBC even emailed U.S. and Florida based commenters with instructions to on how to view the documentary.
Whether President Trump can prove these claims and establish he sustained damages at summary judgment or trial is left for another day. For now, after careful review, and being otherwise fully advised, BBC’s Motion to Dismiss is granted in part and denied in part.
Kuntz went on to lay out how the BBC created its hoax, a story that will be familiar to Hot Air readers but not likely to the BBC's audience:
On October 28, 2024, one week before the 2024 Presidential Election, BBC broadcast a documentary titled “Trump: A Second Chance.” Id. ¶1. In the Documentary, a twelve-second segment portrayed President Trump giving a speech to his supporters on January 6, 2021:
We’re going to walk down to the Capitol and I’ll be there with you. And we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.
Id. ¶3. This two sentence, twelve-second segment, represents the core of Trump’s complaint. However, the issue with the statement is that Trump never said it. The above statement is actually two parts of a speech spliced together. Instead, the first remarks that Trump made were:
Now it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down and I’ll be there with you. We’re going to walk down, we’re going to walk down. Anyone you want but I think right here, we’re going to walk down to the Capitol and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them
Id. ¶4. Nearly fifty-five minutes later, Trump continued:
[B]ut I said ‘Something’s wrong here, Something’s really wrong, can’t have happened.’ And we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.
Id. Additionally, less than a minute later, Trump told his supporters to peacefully walk to the Capitol, stating:
I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard
It is those two statements, edited and spliced together, that form the alleged defamatory twelve-second segment that aired in the Documentary.
Kuntz then points out that the chairman of the BBC admitted that they mischaracterized Trump's speech, although he claimed that it was an "editorial error" done "unintentionally."
The BBC nevertheless relied heavily on the Sullivan standard of requiring "actual malice" in defamation claims involving "public persons." Kuntz writes several paragraphs about the Sullivan decision, none of them complimentary, but still notes that current precedent requires its application. After pointing out that those precedents do not require plaintiffs to prove "ill will" as part of actual malice, Kuntz makes it clear that Trump's claims would meet that standard if he can prove them in court, and that "ill will" may not be that tough to prove either:
Here, Trump alleges that BBC has a history of unfair or improper coverage toward him. In addition to the Documentary itself, Trump highlights the Prescott Memorandum, a 2022 BBC Newsnight episode, and the “2024 BBC News Shooting Hoax.” [FAC, ¶¶63-85]. As an important reminder, the state of mind required for actual malice must be “brought home” to the person in the BBC’s organization responsible for the publication of the Documentary. Sullivan, 376 U.S. at 287. This principle is relevant as it relates to the 2022 Newsnight episode and the 2024 “Shooting Hoax.” Again, Trump has not alleged that either of these incidents involved the creator(s) of the Documentary. That said, these incidents are not merely portrayal in a negative light, but examples of BBC playing fast and loose with the factual accuracy of their media content. With respect to the Newsnight episode, the BBC seemingly did not care about the falsity of the portrayal until the later Documentary became an issue. See [FAC, at 18 & n.25]. Such examples can be said to be probative of BBC’s state of mind as it pertains to recklessness in light of BBC’s non-action toward false statements about Trump.
Thus, Trump paints a picture that demonstrates the BBC has a record of allowing the publication of false statements in their portrayal of Trump. BBC asks the Court to put on blinders and treat the Panorama team as if they were blocked off from the rest of the organization, ignorant of everything else going on at BBC. At this procedural stage, the Court simply cannot ignore the circumstantial evidence presented. To do so would make it extremely difficult to ever prove a defendant’s subjective state of mind in any defamation case. See Trump Media & Technology Grp. Corp. v. WP Company LLC, 838 F. Supp. 3d 1213, 1219 (M.D. Fla. 2026).
And in this case specifically ...
On its face, the editing may independently establish the plausibility of actual malice. BBC tries to frame this editing as ordinary editing done to condense a seventy-minute-long speech into twelve seconds. But the Court is not persuaded.
Editing is often required. However, given the time disparity between the two statements, the distance itself tends toward a plausible inference that BBC knew or should have known that the segment they were creating would not and could not have been a truthful statement. This was not trimming around the edges but creating something different than what was stated in the speech. BBC also had the entire speech available to them for nearly three years by the time of the Documentary. See Pete v. Cooper, 812 F. Supp. 1251, 1266 (S.D. Fla. 2025) (finding the pleading standard was satisfied where plaintiff alleged, inter alia, that readily available information contradicted defendant’s statement).
Kuntz then notes that the BBC is now singing a different tune from its earlier apology:
BBC’s Chairman admitted that the documentary gave a misleading and mistaken impression that Trump made a direct call for violent action. Strangely enough, BBC strays from that position in the Motion to Dismiss, referring to statements made by January 6 defendants as evidence that the speech may be interpreted as a call to violent action. [ECF No. 133, at 26]. But BBC’s own Chairman acknowledged the editing was misleading in his letter to Trump. See [FAC, Ex. K].
In other words, there seems to be quite a bit of malice at the BBC toward Trump, both "actual" and otherwise.
The BBC now has a very big problem. Trump doesn't have to challenge the Sullivan precedent to prevail. The toughest part of Trump's case when it goes to trial would likely be proving damages, a required element of defamation. Florida law does not allow per se defamation claims, Kuntz notes when he addresses the potential for 'actual harm' in his ruling, and given his victory in 2024 after the airing of the documentary, it might be tough to establish reputational damage. However, as Kuntz notes, that's a question for a Florida jury and not a pretrial motion. All Trump has to do at this stage is plead damages.
That doesn't mean Sullivan is off the table, though. The Supreme Court has been engaging in throat-clearing over that precedent for years, and Kuntz himself strongly suggests that the precedent get revisited in a sharply critical light. If this case proceeds on appeal to the Supreme Court, they might decide to use this case to reverse Sullivan and strip the mainstream media of that fig leaf for good.
It's not just in the BBC's interest to settle this rather than risk the Sullivan standard. It's in the interest of the entire media industry. That's why ABC News and CBS News threw in the towel – along with a combined $30 million, give or take – to end Trump's lawsuits against them over the past couple of years.
Jonathan Turley also sees the shadow of Sullivan hanging over the BBC's next moves:
Judge Jeffrey Kuntz found that the BBC not only recognized its violation of journalistic ethics but actively sought to guarantee that the misleading segment would be heard before the election in states such as Florida.
This decision is notable because Trump must meet a higher standard under Supreme Court precedent. Under New York Times v. Sullivan, the Supreme Court crafted the actual malice standard that required public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth. That standard was later extended to public figures. ...
It is a comprehensive and informative opinion. While I have criticized some past lawsuits, I believe the court is right to set this case for trial.
Kuntz set the case for trial, but don't buy your courtroom tickets just yet. If this even gets to voir dire, I'd eat my hat. The BBC is not going to risk a trial that might put it at higher risk for defamation cases in the U.S. They'll cave, and they'll pay millions to Trump's presidential library to do so.