CBS attorneys on Friday asked a federal judge in Texas to dismiss President-elect Donald Trump’s deceptive trade practices lawsuit against the mainstay American broadcaster over an edited “60 Minutes” interview with Vice President Kamala Harris.
Trump filed the 19-page lawsuit on Halloween, claiming the aired footage was deceptively “doctored” to “confuse, deceive, and mislead the public” and to “tip the scales” in favor of Democrats, akin to “election and voter interference through malicious, deceptive, and substantial news distortion.”
In the 33-page motion to dismiss, CBS claims that there is no longer “any live case or controversy” because Trump won the November presidential election. Furthermore, the motion claims that Trump never alleged facts sufficient under Lone Star State law to support the litigation.
Texas has long had a comprehensive set of consumer protection laws, embodied in the Texas Deceptive Trade Practices Act.
The DTPA was once regarded as one of the most vibrant consumer protection statutes in the country before being significantly weakened by the Republican-controlled state legislature in 2017 following heavy lobbying from the insurance industry.
Under the heading “DECEPTIVE TRADE PRACTICES UNLAWFUL,” the relevant part of the law reads as follows:
False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and are subject to action by the consumer protection division…
[T]he term “false, misleading, or deceptive acts or practices” includes, but is not limited to, the following acts … delivering or distributing a solicitation in connection with a good or service…
According to the CBS motion, the disputed broadcast had nothing to do with a commercial solicitation.
“[T]he DTPA was designed to protect Texas consumers engaged in commercial transactions against false, misleading, and deceptive business practices, not to police editorial decisions made by news organizations with which one disagrees,” according to the application. “President Trump lacks legal standing under the DTPA.
The one thing President Trump should have claimed, but did not, was that 60 Minutes’ editing deceptively induced him to enter into a commercial transaction.”
The motion to dismiss combines an attack on the merits of the lawsuit with the conservative standing doctrine.
Legal scholars commonly refer to modern Article III jurisprudence as the “conservative standing doctrine.” This judicial theory was developed in two cases from the 1920s by conservative judges who sought to limit the use and scope of constitutional redress.
In other words, the standing doctrine was created to prevent citizens from suing the government for perceived violations of their rights.
Standing arguments, while procedural in nature, rely on facts rather than underlying arguments in a dispute.
In this case, CBS claims that Trump’s victory has stripped the court of any potential jurisdiction under Article III, and that Trump’s complaint about the network did not sufficiently allege any actual injury.
“President Trump’s various attempts to allege injury are far too generalized and speculative to confer standing,” according to the motion. “Just as a federal court is not a legislative assembly, a town square, or a faculty lounge, neither is a public editor.
President Trump’s claim that CBS ‘crossed a line’ in editing the interview does not constitute a personal, concrete injury. Furthermore, President Trump’s claim that he’stands in the shoes of each Texas voter’ or that ‘the public’ was duped only reinforces the broad nature of his complaint and his lack of Article III standing.”
CBS attorneys also claim Trump’s DTPA standing is nonexistent.
Based on the motion, at length:
President Trump also lacks standing under the DTPA. The purpose of the DTPA is “to protect consumers in consumer transactions.” … Put differently, the plaintiff must allege that “the defendant’s deceptive conduct . . . occur[red] in connection with a consumer transaction….
President Trump does nothing more than allege he is a “consumer” under the DTPA since he “sought and received CBS’s broadcast services.” Yet it is not enough under the DTPA for a plaintiff to allege that he sought and received services. Rather, the DTPA requires that a plaintiff allege with particularity that he “purchased or leased” defendant’s services. Indeed, DTPA claims are subject to Rule 9(b), which requires pleading “with particularity.”
“Nowhere in the Complaint does President Trump allege that he in fact ‘purchased or leased’ any CBS services or, if he had, when, where, or how he did so,” according to the motion. “Because President Trump ‘fails to specify any allegations in support of [his] alleged consumer status,’ he lacks standing to bring the DTPA claim here.”
On the merits, CBS claims the contested interview’s “editing was not deceptive” and “addresses issues of utmost public significance.”
“The First Amendment prevents holding CBS liable for editorial judgments the President may not like,” according to the motion.
The network also issues a warning to Trump-appointed U.S. District Judge Matthew Kacsmaryk if the court decides to give the plaintiff leeway in applying the consumer protection statute.
“Under President Trump’s interpretation, the DTPA would become a weapon for any candidate to challenge media coverage they did not like,” the proposed amendment states. “The DTPA has never been so used and it has no application to the alleged facts here.”
