Trump Sues CNN Appeal Initial Brief

USCA11 Case: 23-14044 Document: 19 Date Filed: 03/29/2024 Page: 1 of 58
No. 23-14044-E
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
DONALD J. TRUMP,
Appellant,
v.
CABLE NEWS NETWORK, INC.,
Appellee.
.
On Appeal from the United States District Court

for the Southern District of Florida
APPELLANT’S INITIAL BRIEF
Richard C. Klugh, Esq. Alejandro Brito, Esq.

Richard C. Klugh, P.A. Brito, PLLC
40 N.W. 3rd Street, PH1 2121 Ponce de Leon Blvd., Suite 650
Miami, Florida 33128 Coral Gables, Florida 33134
Tel. (305) 536-1191 Tel: (305) 440-4385
Counsel for Appellant, President Donald J. Trump

CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT
Appellant files this Certificate of Interested Persons and Corporate Disclosure
Statement, listing the parties and entities interested in this appeal, as required by 11th
Cir. R. 26.1.
Brito, Alejandro
Bryan Cave Leighton Paisner LLP
Cable News Network, Inc.
Edison, Eric C.
Gunster, Yoakley & Stewart, P.A.
Halligan, Lindsey
Ifrah Law PLLC
Klugh, Richard C.
LeMieux, George S.
Schroeder, Eric. P.
Singhal, Hon. Raag
Trusty, James M.
Underwood, Jr., Brian M.
Valle, Hon. Alicia O.
Warner Bros. Discovery, Inc. (Nasdaq: WBD)
C1 of 1
STATEMENT REGARDING ORAL ARGUMENT
Appellant, President Donald J. Trump, respectfully requests oral argument.
Oral argument would assist the Court in deciding the issues presented by this
appeal, including the fact-bound questions of the meaning conveyed by the
numerous defamatory statements.
i
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . C1
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Course of Proceedings, Disposition in the District Court,

and Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARGUMENT AND CITATIONS OF AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . 17
I. The District Court’s Dismissal of the Complaint with Prejudice Was

Erroneous Where It Was Mistakenly Premised on Analysis of Only Five
of the Numerous Defamatory Statements That Demonstrate Pervasive,
Ongoing False Claims of Knowing Lies and Misleading Nazi Linkage
Throughout Defendant’s Programming—Accompanied by Visual
Imagery and Other Tie-ins to Hitler—and Where the Statements Were
Neither Pure Opinion Nor Rhetorical Hyperbole, but Instead False
Factual Propositions or Mixed Opinions Implying Underlying
Defamatory Facts, Actionable as Defamation under Florida Law. . . . . . . . . . . 17
A. The district court erred in unduly constricting the scope of review

of actionable defamatory statements, failing to consider the
totality and context of the defamatory statements, and finding that
CNN’s statements were pure opinion or rhetorical hyperbole,
where Plaintiff stated plausible claims for defamation premised on
CNN’s pervasive and false accusations including false linkage of
ii
Plaintiff with Hitler’s lies and Nazism . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. The district court foreclosed comprehensive consideration

of the defamation allegations by limiting its review and
analysis to only five highlighted examples of the more than
sixty quoted defamatory statements in the
statutorily-requisite pre-suit notice letter referenced by and
attached to the complaint and failed to consider any of the
defamatory statements in light of the many thousands of
defamatory uses of the “Big Lie” accusation and hundreds
of direct linkages to the Nazis’ employment of the “Big
Lie,” that CNN falsely associated with the Plaintiff . . . . . . . . . . 20
2. The challenged statements were false factual allegations that

defamed Plaintiff or, at minimum, mixed, rather than pure,
opinion, thus plausibly setting forth the basis for a claim for
defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3. The challenged statements, which were seriously conveyed

and expressed as assertions of fact, were not mere
rhetorical hyperbole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
B. The determination of whether the challenged statements were

reasonably capable of a defamatory meaning presented factual
issues that, under Florida law, should properly have been left to
the jury’s determination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
II. The District Court Abused its Discretion in Denying Plaintiff’s Motion
for Reconsideration or Rehearing and Alternative Motion for Leave to
Amend, Where the Court Applied Inapt and Unduly Constricted
Standards in Evaluating Clear Error or Manifest Injustice and Denying
Leave to Amend, Contrary to Federal Procedural Requirements . . . . . . . . . . . 40
A. The denial of Plaintiff’s motion for leave to amend was an

abuse of discretion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
B. The district court abused its discretion in denying the

motion for reconsideration of its order dismissing the
complaint with prejudice, where the court’s failure to
iii
consider the full context of the challenged statements

amounted to clear error or manifest injustice supporting
reconsideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
iv
TABLE OF CITATIONS
Cases
Arthur v. King
500 F.3d 1335 (11th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Ashcroft v. Iqbal
556 U.S. 662 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Basulto v. Netflix, Inc.

No.: 1:22-cv-21796, 2023 WL 7129970 (S.D. Fla. Sept. 20, 2023). . . . . . . . . . . 29
Bell Atl. Corp. v. Twombly

550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Bennet v. Hendrix
325 Fed. Appx. 727 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Church of Scientology of California v. Cazares

638 F.2d 1272 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 33, 34, 35
Czeremcha v. International Ass’n of Machinists and

Aerospace Workers, AFL-CIO
724 F.2d 1552 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42, 43
Dershowitz v. Cable News Network, Inc.

541 F. Supp. 3d 1354 (S.D. Fla. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Dibble v. Arvich
No. 14-CIV-61264, 2015 WL 12532615 (S.D. Fla. July 29, 2015) . . . . . . . . . . . 28
Dowdy v. Proctor & Gamble Mfg. Co.

267 F.2d 827 (5th Cir. 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Dreggors v. Wausau Inc. Co.

995 So.2d 547 (Fla. 5th DCA 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 37
Eastern Air Lines, Inc. v. Gellert

438 So.2d 923 (Fla. 3d DCA 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 32
v
Foman v. Davis
371 U.S. 178 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Ford v. Rowland
562 So.2d 731 (Fla. 5th DCA 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Fortson v. Colangelo
434 F. Supp. 2d 1369 (S.D. Fla. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37
From v. Tallahassee Democrat, Inc.

400 So.2d 52 (Fla. 1st DCA 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Great Lakes Ins. SE v. Boat Rental Miami, Inc.

2020 WL 264674 (S.D. Fla. Jan. 17, 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Griggs v. Hinds Junior College

563 F.2d 179 (5th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Hallmark Builders, Inc. v. Gaylord Broad. Co.

733 F.2d 1461 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Hay v. Indep. Newspapers, Inc.

450 So.2d 293 (Fla. 2d DCA 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Hoch v. Rissman, Weisberg, Barrett

742 So.2d 451 (Fla. 5th DCA 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Ironworkers Local Union 68 v. Astrazeneca Pharms., LP,

634 F.3d 1352 (11th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Johnson v. Borders
36 F.4th 1254 (11th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Lipsig v. Ramlawi
760 So.2d 170 (Fla. 3d DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 32
MacPhee v. Midex Group, Inc.

73 F.4th 1220 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 43
vi
McQueen v. Baskin
377 So.3d 170 (Fla. 2d DCA Nov. 17, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Michel v. NYP Holdings, Inc.

816 F.3d 686 (11th Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Milkovich v. Lorain J. Co.

497 U.S. 1, 18-19 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 29
Moorer v. Demopolis Waterworks & Sewer Bd.

374 F.3d 994 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Morse v. Ripken
707 So.2d 921 (Fla. 4th DCA 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
New York Times v. Sullivan

376 U.S. 254 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Rubin v. U.S. News & World, Inc.

271 F.3d 1305 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 38
Thomas v. Farmville Mfg. Co.

705 F.2d 1307 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 42, 43
Toole v. Baxter Healthcare Corp.

235 F.3d 1307 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Town of Sewall’s Point v. Rhodes

852 So.2d 949 (Fla. 4th DCA 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Turner v. Wells
879 F.3d 1254 (11th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 28, 29
Zambrano v. Devanesan
484 So.2d 603 (Fla. 4th DCA 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Statutes and Other Authorities
U.S. Const., amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27
vii
Fla. Stat. § 770.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 12
Fed. R. Civ. P. 59(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Fed. R. Civ. P. 60(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Merriam-Webster Dictionary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Moore’s Federal Practice ¶ 15.07[2] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
viii
STATEMENT OF JURISDICTION
The court of appeals has jurisdiction over this appeal pursuant to 28 U.S.C. §
1291, which gives the courts of appeals jurisdiction over all final decisions of the
district courts of the United States. Appellant, President Donald J. Trump, timely
appealed on December 11, 2023, from the final orders entered on July 28, 2023
(DE:31) (order of dismissal) and December 5, 2023 (DE:37) (order denying
reconsideration or rehearing of order of dismissal), that dispose of all claims between
the parties to this cause.
ix
STATEMENT OF THE ISSUES
I. Whether the district court erred in dismissing, with prejudice, for failure
to state a claim Plaintiff’s complaint alleging defamation premised on factually false
broadcasts and publications wrongfully asserting that Plaintiff knowingly disseminated
lies to violate and suppress voter rights and that, to effectuate that goal, Plaintiff
supposedly promulgated the Nazi “Big Lie” approach, where the district court:
failed to analyze or otherwise consider more than 60 specific,
documented defamatory statements in Plaintiff’s comprehensive pre-suit
notice letter, which set the parameters of actionable defamation under
Fla. Stat. § 770.01, was made part of complaint, and from which
examples were highlighted by Plaintiff;
failed to give consideration to the pervasive, ongoing nature of
Defendant’s thousands of repeated false statements defaming Plaintiff,
including Defendant’s repeated Nazi-linked defamatory references
throughout Defendant’s news channel programming, accompanied by
visual imagery and other associations with Hitler; misconstrued the
complaint allegations showing that broadcasts and publications were
neither pure opinion nor rhetorical hyperbole, but instead defamatory
assertions conveying multiple factually false statements or, alternatively,
mixed opinions implying underlying defamatory facts, actionable as
1
defamation under Florida law; and misapplied applicable law in
determining that the challenged statements were not reasonably capable
of a defamatory meaning, where these were largely factual issues that,
under Florida law, should have awaited trial, and a jury’s determination
or, at minimum, summary judgment.
II. Whether the district court abused its discretion in denying Plaintiff’s
motion for reconsideration or rehearing and alternative motion for leave to amend,
where the court applied inapt and unduly constricted standards in evaluating clear
error or manifest injustice, improperly dispensing with the requirement to evaluate the
entirety of the challenged statements and the totality of the context and circumstances
in which they were broadcast to the public, and improperly denied leave to amend
contrary to the liberal pleading requirements applicable in the procedural context of
the case.
2
STATEMENT OF THE CASE
Course of Proceedings, Disposition in the District Court,

and Statement of Facts
Since January 2021, Defendant, Cable News Network, Inc. (“CNN”)—a
multinational news network and website that holds itself out as “the most honored
brand” and “most trusted name in news” and which claims to “reach[] more
individuals on television and online than any other news organization in the United
States,” DE:1:5, ¶ 11—has falsely referred to President Trump at least 7,700 times as
purveying the “Big Lie” in questioning improprieties in the 2020 Presidential election.
DE:1 24 & n. 27.
The “Big Lie” is a notorious term that denotes Nazi propaganda used for
repression, including specifically of the Jewish people. DE:1:12–13, ¶ 23 & n. 26; see
Joseph Goebbels: On the Big Lie, Jewish Virtual Library,
https://www.jewishvirtuallibrary.org/joseph-goebbels-on-the-quot-big-lie-quot#goog
le_vignette (hereinafter “Joseph Goebbels: On the Big Lie”)(explaining how Hitler first
used the term “big lie” to defame the Jewish people; “The original description of the
big lie appeared in Mein Kampf. Adolf Hitler applied it to the behavior of Jews rather
than as a tactic he advocated. Specifically, he accused Viennese Jews of trying to
discredit the Germans’ activities during World War I.”).
CNN broadcast thousands of patterned news show claims and published
3
equivalent false assertions that Plaintiff manufactured the “Big Lie,” the term
associated with Nazi propaganda used by Hitler in furtherance of crimes against
humanity (with CNN using historical references to insure its repeated assertions of the
“Big Lie” took on the intended gravity of the defamation). By stating, as a fact, that
Plaintiff adopted Hitlerian and Nazi tactics of lies and oppression, and was not
exercising his right to assert a political viewpoint regarding an election, CNN intended
to falsely and directly link Plaintiff with lying, repressive Nazi propaganda. In
response, Plaintiff sent a letter to CNN on July 21, 2022, in accordance with the
requirements of Fla. Stat. § 770.01,1 demanding that CNN retract its defamatory
statements. DE:8-1. The demand letter noted that Plaintiff’s challenge to the 2020
Presidential election was premised on widespread reports of irregularities stemming
from, among others, greatly-expanded early voting and mail-in ballot usage. DE:8-1:2.
The letter, which set forth and documented more than sixty instances of defamation,
also observed, inter alia, that previously CNN had repeatedly broadcast assertions
challenging the legitimacy of President Trump’s election in the 2016 Presidential
election. Id. The letter clearly explained that the defamation served the purpose of
personally harming President Trump for raising issues of election fairness, including
as to substantively and procedurally debated rules changes that occurred in irregular
fashion during the course of an election year.

1
Section 770.01 sets forth the requirements of notice as a condition precedent to
an action for libel or slander under Florida law.
4
In an email response, CNN doubled down on its thousands of defamatory
statements by incorrectly asserting that President Trump’s questioning of the
propriety of the 2020 presidential election amounted to lies that been contradicted by
authoritative judicial and other governmental proceedings. DE:1:4–5, ¶ 10 & n. 5
(CNN email response to Plaintiff demand letter asserting, inter alia, that the falsity of
Plaintiff’s election claims was “well-established,” that CNN’s assertions had been
verified, and that “judges across the United States” had refuted the fraud claims).
CNN refused to retract any of the defamatory statements. Cf. DE:35:2 (CNN asserts
false factual claim that Plaintiff’s election process claims have been “disproven”);
DE:20:2 (CNN asserts false factual claims that Plaintiff’s beliefs about the election
have been “debunked” and are “unfounded,” and that “evidence of material election
fraud does not exist”).
In the demand letter, the allegations of which were appended to the complaint
and specifically referenced in the crucial paragraph 28 of the complaint on which the
district court focused, Plaintiff identified and quoted more than sixty representative
instances of CNN’s thousands of defamatory uses of the “Big Lie” attack, which
included broadcasting a photographic image of Hitler (conveying Nazi messaging to
the German people) in attempt to drive home the defamatory association of Plaintiff
with Hitler. DE:1:4, 7–8, ¶¶ 10, 16, 28; DE:8-1 (Exhibit to Complaint). The
complaint highlighted the following examples “that were provided in the Plaintiff’s
5
Notice Letter [DE:8-1] that CNN refused to retract”:
January 25, 2021: CNN-published article by Ruth Ben-Ghiat, a
“frequent contributor to CNN Opinion,” purporting to verify the
assertion that “Trump’s big lie” “worked” because of “his thousands of
little lies.” The article refers to Plaintiff as “a leader of authoritarian
intentions and tendencies,” who “admires” “foreign autocrats,” wanted
to “revoke or destroy the First Amendment,” and “unleash[ed] a barrage
of disinformation common in authoritarian states.” [DE:1:14–15, ¶
28(a)].
July 5, 2021: CNN-published article by CNN Editor-at-Large Chris
Cillizza, accusing Plaintiff of admitting pursuit of a “disinformation
strategy.” Cillizza likened Plaintiff to Nazi propagandist Joseph
Goebbels, by stating that Plaintiff’s assertion “was a near-replication of
this infamous line from Nazi Joseph Goebbels: ‘If you tell a lie big
enough and keep repeating it, people will eventually come to believe it.’”
[DE:1:15, ¶ 28(b)].
September 15, 2021: CNN-published article by Cillizza entitled “Donald
Trump’s Mental Health becomes an issue again.” Cillizza wrote that
Plaintiff “continued to push the Big Lie that the election was somehow
stolen despite there being zero actual evidence to back up that belief.”
6
[DE:1:15–16, ¶ 28(c)].
January 16, 2022: CNN-broadcast of television show entitled “State of
the Union,” in which host Jake Tapper states, while playing video clips
of Plaintiff, that “while Martin Luther King III was in Arizona rallying to
expand voting rights, Donald Trump was, the same day, in the same
state, doing the exact opposite, continuing to push his big lie” and that
“Trump was in Arizona, to push the legislature to disenfranchise the
state’s voters based on all of his deranged election lies.” [DE:1:16, ¶
28(d)].
February 11, 2022: CNN-published article by Cillizza, asserting the
“terrible reality” that “Trump’s election lie is on the march” and the
“Trump 2020 election lie is working.” Cillizza claims “Trump’s big lie”
is “insidious[]” and that “by sheer repetition, his false claims are
wheedling their way into the consciousness of the public. [DE:1:16, ¶
28(e)].
These allegations of defamation included CNN anchor Jake Tapper’s claim that while
others were seeking to expand voting rights, Plaintiff was using the “Big Lie” to do
“the exact opposite.” DE:20:4.
Despite admonition from CNN’s then-Chairman and Chief Executive Officer
Chris Licht on June 15, 2022, regarding the use of the term “Big Lie,” CNN’s on-air
7
personalities, including John King, Jake Tapper, John Avlon, Brianna Keilar, and Don
Lemon, among others, continued to use this phrase to describe Plaintiff. DE:1:14, ¶
26 & n. 29. CNN’s harmful, false castigation of Plaintiff as pursuing the “Big Lie”
strategy—an epithet not used by CNN against any other American public figure—not
only derided his honesty and trustworthiness, by stating that he knowingly and
intentionally lied in every comment about 2020 election integrity issues, but aligned
him with arguably the most evil, murderous political figure and regime in history and
falsely and maliciously asserted that his purpose was equally persecutive and violative
of individual rights. CNN’s Editor-at-Large described “Trump’s big lie” as
“insidious” and like an ear worm “wheedling [its] way into the consciousness of the
public.” DE:1:13–14, ¶ 25 & n. 28.
CNN broadcasts ensured that viewers would believe the false statements aired
by CNN linking Plaintiff to Hitler’s “Big Lie.” On January 9, 2022, CNN broadcast
“Special Report”: “The Fight to Save Democracy” by CNN news anchor Fareed
Zakaria. In the program’s promotional video, Zakaria states: “Democracy everywhere
is under attack. But remember, America has been here before. America has
vanquished demagogues before. So how do we do it now?” The Report itself, which
discussed Plaintiff’s challenge to election integrity in the 2020 Presidential election,
shockingly juxtaposed footage of Plaintiff with the ascendancy of Hitler and Nazi
Germany. The program was followed by a barrage of viewers’ comments on Twitter
8
indicating that people believed Zakaria’s broadcast was true:
“Excellent and chilling. The parallels with the rise of Hitler are
obvious and undeniable right down to the lies and conspiracy theories.”
“Fareed Zakaria lays out the ways in which this threat is real and
parallels historical threats. This report is a must see in the hope
that it’s not already too late.”
“The similarity between Hitler in 1930’s Germany and Trump in 2016

are notorious. And the way you made the segment by on and off
alternate images of both. Even if not apparent before, you made it
now. Wish you can post in stream.”
“EVERY American should have to watch this special. Two BIG

take aways: Trump is not Hitler. But he is taking every play from
Hitler’s playbook. Liberals, put your agenda on hold because we are
busy saving democracy right now!”
DE:1:8–9, ¶ 17 (emphasis added).
In light of CNN’s failure to retract its defamatory statements and the ongoing
deleterious impact of CNN’s false attributions, Plaintiff filed a complaint against
CNN on October 3, 2022, asserting claims for defamation per se (Count I) and for
defamation (Count II). DE:1.
On November 22, 2022, CNN moved to dismiss the complaint, repeating its
incorrect contention that the statements challenged by President Trump somehow set
forth established facts, including that there was no fraud in the 2020 Presidential
election, while simultaneously and contradictorily arguing that the statements (alleging,
inter alia, that Plaintiff engaged in “the Big Lie” regarding fraud in the 2020
9
Presidential election) were merely “hyperbole” and “pure opinion.” DE:20:1, 2.
Plaintiff filed an opposing response, DE:21, to which CNN submitted a reply.
DE:22. On July 28, 2023, without holding a hearing, the district court issued an order
granting the motion to dismiss with prejudice. DE:31. The Order erroneously
reviewed the defamation issue as limited to five examples of “Big Lie” allegations
derived from the retraction request and pre-suit notice letter attached to, and
referenced in paragraph 28 of, the complaint, and found that “the complained of
statements [i.e., just those five highlighted examples from the notice letter] are
opinion, not factually false statements, and therefore are not actionable.” Id. at 7.
The district court further ruled that, while the five statements addressed in the order
were “odious and repugnant,” such “references in the political discourse” were
nothing more than “bad rhetoric” that could not have led to viewers associating
Plaintiff with persecutive purposes of Nazi propaganda. Id. at 9; see id. at 10 (district
court rules that merely accusing someone of “[b]eing ‘Hitler-like’ is not a verifiable
statement of fact that would support a defamation claim”).
The district court erroneously determined that its evaluation of the defamatory
nature of CNN’s broadcasts and publications was proper at the motion to dismiss
stage. DE:31:10. In addition, the court ruled, by way of footnote, that because leave
to amend had not yet been requested, dismissal with prejudice was appropriate
without leave to file even a first amended complaint. Id. at 10 n. 9. However, the
10
court’s order did not indicate that its dismissal of the complaint constituted a dismissal
of the action, nor was a judgment issued or entered.
On August 7, 2023, just 10 days after the dismissal order, Plaintiff moved for
reconsideration or rehearing, and alternatively moved for leave to amend his
complaint in order to correct any perceived pleading deficiency and to explicitly set
forth the claim of defamation by implication. DE:32, 36. CNN’s response to the
motion acknowledged that Plaintiff’s complaint already encompassed a claim for
defamation by implication in asserting that CNN’s repeated association of Plaintiff
with Nazi terminology implied that Plaintiff was “Hitler-like.” DE:35:13.
On December 3, 2023, the district court denied Plaintiff’s motion for
reconsideration or rehearing and also denied Plaintiff’s alternative motion for leave to
amend. DE:37.
Standards of Review
This Court reviews the grant of a motion to dismiss de novo. Michel v. NYP
Holdings, Inc., 816 F.3d 686, 694 (11th Cir. 2016). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “The allegations
11
in the complaint must be accepted as true and construed in the light most favorable to
the plaintiff.” Michel, 816 F.3d at 694 (citing Ironworkers Local Union 68 v. Astrazeneca
Pharms., LP, 634 F.3d 1352, 1359 (11th Cir. 2011)). Further, “[w]hether a statement is
one of fact or opinion is a question of law, subject to de novo review.” Town of
Sewall’s Point v. Rhodes, 852 So.2d 949, 950 (Fla. 4th DCA 2003).
The denial of a motion for reconsideration or rehearing is reversible for an
abuse of discretion. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007); Toole v. Baxter
Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000). The denial of leave to amend
sought on reconsideration is likewise reversible for an abuse of discretion. See MacPhee
v. Midex Group, Inc., 73 F.4th 1220, 1238 (11th Cir. 2023); Thomas v. Farmville Mfg. Co.,
705 F.2d 1307, 1307 (11th Cir. 1983).
SUMMARY OF THE ARGUMENT
The district court erred in failing to evaluate the totality of the complaint’s
allegations of defamation, including all quoted and documented broadcasts and
publications that CNN had refused to retract despite Plaintiff’s request under Fla.
Stat. § 770.01. After unduly narrowing the scope of the defamation at issue, the
district court erroneously concluded that CNN’s statements could not be viewed by a
jury as factual claims, but rather mere rhetoric or opinion. The allegations, particularly
at the motion to dismiss stage, show the contrary.
The dismissal ruling presents an opportunity for this Court to resolve an
12
unsettled question regarding the scope of a broadcaster’s right to avoid defamation
liability in the face of its unprecedented multiple-media effort to falsely accuse
Plaintiff of intentionally and illegitimately pursuing a “Big Lie” propaganda strategy,
repeatedly broadcasting purported factual presentations falsely and maliciously
accusing Plaintiff of knowingly and intentionally making false claims of election fraud
and irregularities and of doing so as part of an insidious propaganda plan to repress
wide swathes of the voting population. CNN repeatedly defamed Plaintiff by asserting
as a fact the false accusation, which CNN’s representatives made with utmost
seriousness and on a continuing basis, that Plaintiff was intentionally manufacturing
election lies with the same effect and purpose as Hitler’s racist, genocidal lies.
The allegations of the complaint, accepted as true and construed in the light
most favorable to Plaintiff, stated plausible claims for defamation against CNN under
Florida law. In dismissing Plaintiff’s complaint with prejudice, the district court
mistakenly discounted entirely all but five of Plaintiff’s specifically documented
instances of defamation and failed to take into consideration the thousands of
additional equivalent statements challenged as defamatory that were the subject of
Plaintiff’s complaint, despite the fact that the complaint specified additional offending
statements and imagery, alleging, in total, more than 7,700 defamatory statements. See
DE:21:14 (Plaintiff argues in response to motion to dismiss that “the Court should
look at all allegations in the complaint) (emphasis in Plaintiff’s response). Moreover,
13
even with respect to the five statements it considered, the district court erred further
in finding that CNN’s publications were merely pure opinion or bad rhetoric, rather
than factual propositions and in failing to permit the Plaintiff to amend to provide
further detail and explanation of the defamatory statements, including those the
district court chose not to consider.
As set forth in the complaint, CNN wrongfully stated that Plaintiff’s assertions
of fraud in the 2020 Presidential election process was a lie on the order of the “Big
Lie,” a Nazi propaganda design used by Hitler and the Nazi regime. CNN’s
attribution of lies to Plaintiff with regard to the election’s integrity was a false
statement of fact by CNN—made over and over again. The complaint’s allegations
about the underlying facts were, as CNN conceded, presumed true for purposes of
the motion to dismiss. Thus, debates about the extensive indicia of election
irregularities detailed by Plaintiff and showing that his belief was far from baseless,
DE:8-1:6–10 (Ex. to Complaint), were not in dispute.
The defamatory statements put forth a bundle of factually-false allegations,
including about various aspects of the 2020 Presidential election, about Plaintiff’s
understanding of what took place in the election, about Plaintiff’s intention in
expressing views about the election, and about whether the Nazi propaganda
disinformation campaign used for oppression (which included brutal intimidation)
related in any way to Plaintiff’s statement of his views, which it did not. At a
14
minimum, dismissal of the complaint without even the filing of an answer by CNN
was premature.
The district court’s further failure to examine CNN’s statements in light of the
widespread, thematic, visual, and false linkage of Plaintiff with Hitler, Nazism and
Nazi propaganda throughout CNN’s news channel programming—including 645
instances in which Plaintiff was linked within ten words of Hitler and Nazis, DE:1:12
¶ 20, and over 7,700 instances in which Plaintiff was asserted to have used the “Big
Lie” strategy and/or told the “Big Lie”—reflects a structural infirmity in the district
court’s analysis of Plaintiff’s claims that is at odds with the requirement for evaluating
defamation in light of the entirety of surrounding circumstances, including the
language used and the context in which the statements were made.
The district court alternatively erred in failing to consider that the challenged
statements were mixed opinions that implied the existence of undisclosed defamatory
facts—including Plaintiff’s attributed, in reality nonexistent, use of an actual Nazi
propaganda technique—as the basis for the statements. The district court erred
further in deciding as a matter of law that CNN’s publications were not reasonably
capable of a defamatory meaning, where that assessment reaches questions of fact
reserved for a jury’s determination.
The district court erred in denying Plaintiff’s motion for reconsideration or
rehearing and alternative motion for leave to amend, where the court’s rulings were
15
premised on legally improper and unduly constricted standards for evaluating the
propriety of reconsideration and leave to amend, contrary to federal procedural
requirements. The district court’s structural lapse in failing to consider the entirety of
the defamatory statements alleged in the complaint, reflecting the staggering breadth
and scope of CNN’s ongoing, malicious, and defamatory linkage—both in broadcast
statements and imagery—of Plaintiff with Hitler and Nazism, amounted to clear error
and manifest injustice warranting reconsideration.
In addition, denial of Plaintiff’s timely motion for leave to amend the complaint
was an abuse of discretion, where governing authority provides that amendment must
be liberally granted in the procedural context of this case, in which judgment was not
entered, especially since the district court did not determine that viable amendment
was not possible or that dismissal of the complaint constituted dismissal of the action.
16
ARGUMENT AND CITATIONS OF AUTHORITY
I. THE DISTRICT COURT’S DISMISSAL OF THE COMPLAINT

WITH PREJUDICE WAS ERRONEOUS WHERE IT WAS MISTAKENLY
PREMISED ON ANALYSIS OF ONLY FIVE OF THE NUMEROUS
DEFAMATORY STATEMENTS THAT DEMONSTRATE PERVASIVE,
ONGOING FALSE CLAIMS OF KNOWING LIES AND MISLEADING
NAZI LINKAGE THROUGHOUT DEFENDANT’S
PROGRAMMING—ACCOMPANIED BY VISUAL IMAGERY AND
OTHER TIE-INS TO HITLER—AND WHERE THE STATEMENTS
WERE NEITHER PURE OPINION NOR RHETORICAL HYPERBOLE,
BUT INSTEAD FALSE FACTUAL PROPOSITIONS OR MIXED
OPINIONS IMPLYING UNDERLYING DEFAMATORY FACTS,
ACTIONABLE AS DEFAMATION UNDER FLORIDA LAW.
A. The District Court Erred in Unduly Constricting the Scope of Review of

Actionable Defamatory Statements, Failing to Consider the Totality and
Context of the Defamatory Statements, and Finding That CNN’s
Statements Were Pure Opinion or Rhetorical Hyperbole, Where Plaintiff
Stated Plausible Claims for Defamation Premised on CNN’s Pervasive
and False Accusations Including False Linkage of Plaintiff with Hitler’s
Lies and Nazism.
In determining whether “statements were capable of defamatory meaning and
[whether] the court should not have decided the question at the Motion to Dismiss”
stage, see Church of Scientology of California v. Cazares, 638 F.2d 1272, 1285 (5th Cir. 1981),
several factors in this case show that the district court erred. First, the district court
failed to consider the totality of the fully articulated allegations of defamatory
17
statements, including the more than sixty instances of defamation set forth in the
Notice Letter to CNN incorporated into the complaint as an exhibit and from which
examples were highlighted in the complaint. Instead, the district court considered
only five defamatory statements, thereby unduly narrowing the actual scope of the
complaint. Second, the district court failed to analyze and consider the totality of the
nearly 7,700 instances in which CNN had defamed Plaintiff with the “Big Lie”
allegation, an unprecedented, wrongful barrage linking Plaintiff to the notorious Nazi
“Big Lie” propaganda used to oppress by means of knowing lies characterized by their
complete falsity, hence big lies. Third, the district court erred in ruling that the limited
selection of defamatory statements the court considered constituted pure opinion,
where CNN’s own explanation of those statements was that they were intended to
convey factual premises that could readily be verified or refuted, such as CNN’s
incorrect assertion that all claims of fraud had been “disproven” in appropriate
proceedings and that all judges to whom fraud claims were presented had found on
the merits of the claims that the election was “unaffected by fraud.” DE:1:4–5 n. 5.
Thus, the district court wrongly concluded that only expressions of pure opinion were
involved, where particularly at the motion to dismiss stage, and in light of CNN’s own
explanations of the statements, it was at least a jury question whether CNN was
conveying news asserted to be fact-based or, at a minimum, mixed opinions
containing a false factual component. Fourth, the district court too narrowly
18
addressed the relevance of the patterned, malicious, and defamatory linkage to Hitler,
Goebbels, and the Nazi defamation used as a predicate for the Holocaust and
condemned in the Nuremberg trial of crimes against humanity.2 The district court
mischaracterized the CNN statements as suggesting Plaintiff was “Hitler-like,” which
CNN had admittedly done in other contexts for years, and is defamatory on its own.
But the “Big Lie,” Hitler, and Nazi references in the context of this case were of a
different order: they were meant to, and did, directly convey that Plaintiff had adopted
the Hitlerian tactic of intentionally using gross lies in propagandistic communication
in order to facilitate repression. In this case, CNN alleged the falsely alleged a tactic
of repression of voting and political rights.
The district court wrongly concluded that an allegation of such actions is not
verifiable on factual terms—even though the same types of allegations were sustained
in the Nuremberg trials for the imposition of criminal punishment. See The Propaganda
Prosecutions at Nuremberg, 39 Loy. L.A. Int’l & Comp. L. Rev. at 234–35.
Finally, the district court failed to decide the issue of malice and weigh its
relevance to the meanings to be attributed to the allegedly defamatory statements,
even as the district court mistakenly concluded that Plaintiff’s actual malice contention
2
Gregory S. Gordon, The Propaganda Prosecutions at Nuremberg: The Origin of Atrocity
Speech Law and the Touchstone for Normative Evolution, 39 Loy. L.A. Int’l & Comp. L. Rev.
209 & sources cited therein (2017).
19
rested on allegations of CNN’s longstanding political opposition to Plaintiff, such that
CNN operates much like an opposition political entity that has abandoned any
balanced presentation of facts. See DE:31:8 (ruling that “[a]cknowledging that CNN
acted with political enmity does not save this case [because] the Complaint alleges no
false statements of fact”).3
1. The district court foreclosed comprehensive

consideration of the defamation allegations by limiting
its review and analysis to only five highlighted
examples of the more than sixty quoted defamatory
statements in the statutorily-requisite pre-suit notice
letter referenced by and attached to the complaint and
failed to consider any of the defamatory statements in
light of the many thousands of defamatory uses of the
“Big Lie” accusation and hundreds of direct linkages
to the Nazis’ employment of the “Big Lie,” that CNN
falsely associated with the Plaintiff.
The district court mistakenly limited its analysis to only five alleged defamatory
statements, discounting the more than sixty specifically documented defamatory
statements set forth in the statutorily-required notice letter, statements which the
complaint alleged CNN had refused to retract. The district court also discounted the
many thousands of defamatory statements that were sufficiently identified and
challenged in the complaint. Moreover, even as to the five highlighted statements in
paragraph 28 of the complaint, the court erred in concluding that CNN’s publications
3
Under Florida law, defamation consists of publication, falsity, knowledge or
reckless disregard of falsity, actual damages, and a defamatory statement. Turner v. Wells,
879 F.3d 1254, 1262 (11th Cir. 2018).
20
were merely pure opinion or bad rhetoric, rather than factual propositions or mixed
opinions premised on underlying defamatory facts.
CNN’s actions had the intended effect of wrongfully Hitlerizing Plaintiff’s
election concerns in the eyes of millions of viewers, which CNN accomplished by
repeatedly, falsely, and misleadingly stating that there was no consequential election
impropriety and no credible evidence of the same, that judicial decisions had
established as a matter of law and beyond doubt that there was no relevant election
fraud, and that Plaintiff was lying when he asserted his concerns about the election,
and was knowingly using the Nazi-like “Big Lie” in some sort of scheme to harm
individual rights.
The district court misconstrued the allegations of the complaint, and failed to
conduct the review required to properly evaluate the defamatory nature of the relevant
statements, broadcasts, visual media presentations, and publications by CNN and
whether to grant leave to amend. The complaint’s pre-suit notice exhibit, which set
the boundaries of the defamation claims, listed not only the five instances highlighted
in paragraph 28 of the complaint, but also documented and quoted scores of CNN
broadcasts and publications showing how CNN, over the course of two years
preceding the complaint’s filing, uttered, published, and broadcast factually
defamatory statements designed to harm Plaintiff, all of which employed the basic
false “Big Lie” allegations that CNN weaved into its programming.
21
The scores of defamatory broadcasts had a consistent pattern. The defamation
was the falsehood that Plaintiff was lying about widespread vote fraud and
irregularities; that Plaintiff knew that there was no widespread fraud or improprieties,
that the extent of any election problems had been fully and fairly determined, and that
voting fraud or other illegalities could not have affected the 38 electoral college votes
that Plaintiff needed to win re-election; that Plaintiff was knowingly and willfully using
the “Big Lie” and enlisting others to assist him—and was following the
Hitler/Goebbels/Nazi “Big Lie” strategy—in order to suppress, restrict, and deny
voting rights; and that Plaintiff’s alleged lying and manipulation to suppress election
rights was on a par with the evil, “Big Lie” actions of the Nazis universally
condemned as crimes against humanity.
In the more than sixty documented examples put forward in the appended
retraction request letter, which limited the scope of actionable defamation under
Florida law, Plaintiff identified the multifaceted, defamatory character of the
statements and placed in context their extreme harmful and prejudicial nature. In
many of the instances documented and quoted in the complaint, CNN made it clear
that it was not merely conveying opinions, but was stating what it conveyed as a , fact
that everything Plaintiff had said about the election was an intentional lie on his part.
CNN further made it clear that it was not merely opinion, but a supposed settled fact,
according to CNN, that Plaintiff was using intentional lies as part of a coordinated
22
strategy with others, along the lines of conspirators, to frustrate, delay, suppress, and
extinguish constitutional rights to vote. CNN expressed that it was an undisputed fact
that Plaintiff, due to intentional use of Nazi tactics, was adopting the approach of the
“Big Lie” that was used by Adolf Hitler as a predicate for the Holocaust. The
complaint, including its appended factual detail, alleged that CNN knew that it was a
regular and ordinary practice for politicians and government officials in close elections
such as this one (remarkably decided by vote counts reflected in less than .0004 % of
the ballots, or 55,000 voters, in an election with more than 160 million ballots) and
that CNN had repeatedly stated that such election result questions in close elections
was a normal and legitimate practiceto call into question whether fraud had affected
the outcome and that CNN had repeatedly stated that this was a normal and valid
practice, including by Hillary Clinton and her acolytes in 2016. CNN adopted a
contrary, hypocritical premise related to the Plaintiff: that Plaintiff knew for a fact not
only that there was no fraud of any consequence, no widespread fraud in any state,
and no fraud that could have affected an electoral college vote, but also that all of
these factual issues were resolved after full and adequate litigation on the merits in
courts with jurisdiction, and that he unlike all others, who had a right to take such a
position as to the 2020 or any other election, could not do so, because he was
intentionally lying and defrauding Americans of the right to vote. CNN’s premise is
counterfactual and defamatory.
23
2. The challenged statements were false factual

allegations that defamed Plaintiff or, at minimum,
mixed, rather than pure, opinion, thus plausibly
setting forth the basis for a claim for defamation.
It is undisputed that the motion to dismiss was not the vehicle to determine
whether the complaint’s allegations were true, but rather to determine whether the law
compels a finding of no possible relief. Here, the allegations that are well supported
and well documented by multiple instances (including those not taken into
consideration by the district court) which went beyond passing aspersions of
association with Hitler and the Nazis. The defamatory statements were factually false
on multiple points, and could not be disposed of on a motion to dismiss, particularly
where the district court failed to consider each of the specifically expressed allegations
of defamation and excluded further from the analysis the consideration of the totality
of the circumstances, including the enormity and patterned nature of the
overwhelming use of defamation to wrongly convince CNN viewers and other
consumers of its publications that it is not a matter of opinion, but a fact that Plaintiff
was somehow lying and using the lie in a Nazi manner to the detriment of Americans,
all such claims being totally and completely false.
CNN’s statements thus indisputably purport to be assertions of unequivocal
fact, not opinion. Vitally, CNN’s statements that Plaintiff has engaged in “lies” about
the election’s integrity are false, given the lengthy grounds supporting Plaintiff’s views.
24
DE:8 (Notice of Filing Ex. to Complaint); DE:8-1:6–10 (Ex. to Complaint detailing
indicia of 2020 Presidential election irregularities).
The district court failed to consider the totality of the relevant circumstances of
the defamatory statements apart from the specific defamatory publications identified
and incorporated as part of the complaint. By failing to consider, even in evaluating
the few instances of defamation that the district court erroneously limited its
consideration to, the totality of the defamation circumstances, the district further
erred.
Viewed in light of CNN’s effective bombardment of its audience with false
statements that regularly and solemnly ascribed the telling of lies, including notably the
“Big Lie” strategy of Hitler and Nazism, to Plaintiff, the entirety of the challenged
publications—consisting of more than 7,700 statements—were not pure opinion but
instead false assertions of fact or, alternatively and at the least, mixed opinions based
on concealed or undisclosed defamatory facts, including false attributions to Plaintiff
of using a reviled Nazi propaganda technique, and thus were actionable as defamation
under Florida law.
In its response to Plaintiff’s demand letter identifying dozens of instances of
defamation, CNN did not claim its assertions were merely opinion but rather that its
thousands of such statements were confidently premised on CNN’s false claim that
judges in more than 50 lawsuits had found that the election was not affected by fraud,
25
even as CNN admitted that those cases were resolved on procedural grounds—not
trials on the merits—and where process or timing issues were key factors in such
dismissals. See DE:1:5 n. 5. Contrary to CNN, there was a substantial basis (whether
or not accepted by all voters) to believe that improprieties affected a sufficient
number of votes to harm the electoral outcome.4
Florida provides a cause of action for defamation per se based on a statement
that charges an individual with an infamous crime, tends to subject him or her to
“hatred, distrust, ridicule, contempt or disgrace,” or tends to injure him or her in his
business or profession. Rubin v. U.S. News & World, Inc., 271 F.3d 1305, 1306 (11th
Cir. 2001). Further, a “communication is ‘defamatory’ if it tends to harm the
reputation of another as to lower him or her in estimation of community or deter
third persons from associating or dealing with the defamed party.” McQueen v. Baskin,
377 So.3d 170, 176 (Fla. 2d DCA Nov. 17, 2023) (internal citation and quotations
omitted).
4
See DE:8-1:9 (citing, inter alia, proof, including criminal convictions, of improper
mail drop ballot “mules” impugning 20,000 unlawful ballots, as compared with a certified
10,457-vote margin, in Arizona; 30,000 similar illegal votes, as compared with a certified
11,779-vote margin, in Georgia; 275,000 similar illegal votes, as compared with a certified
80,555-vote margin, in Pennsylvania; and the July 8, 2022 Wisconsin Supreme Court
holding that ballot drop boxes violate state law, where such illegality would be expected
to affect the certified 21,000-vote margin in Wisconsin); see also DE:21:20–21 (describing
relevant uncontested facts indicating substantial improprieties in 2020 election).
26
While statements of pure opinion are protected under the First Amendment,
mixed opinion is not and can give rise to a claim for defamation. See Hay v. Indep.
Newspapers, Inc., 450 So.2d 293, 295 (Fla. 2d DCA 1984). A statement amounts to
pure opinion “only if the speaker states the facts on which he bases his opinion.”
Lipsig v. Ramlawi, 760 So.2d 170, 184 (Fla. 3d DCA 2000) (citing From v. Tallahassee
Democrat, Inc., 400 So.2d 52, 57 (Fla. 1st DCA 1981)). In contrast, a “[m]ixed opinion
is based upon facts regarding a person or his conduct that are neither stated in the
publication nor assumed to exist by a party exposed to the communication.” Dreggors
v. Wausau Inc. Co., 995 So.2d 547, 551 (Fla. 5th DCA 2008) (quoting Hay, 450 So.2d at
295). Thus, a mixed opinion “implies that a concealed or undisclosed set of
defamatory facts would confirm his opinion,” and, as a result, is actionable. Morse v.
Ripken, 707 So.2d 921, 922 (Fla. 4th DCA 1998). Importantly, simply calling
something an opinion does not make it an opinion. As the Supreme Court has made
clear:
Even if the speaker states the facts upon which he bases his opinion, if
those facts are either incorrect or incomplete, or if his assessment of
them is erroneous, the statement may still imply a false assertion of fact.
Simply couching such statements in terms of opinion does not dispel
these implications; and the statement, ‘In my opinion Jones is a liar,’ can
cause as much damage to reputation as the statement, ‘Jones is a liar.’
Milkovich v. Lorain J. Co., 497 U.S. 1, 18–19 (1990); see also Lipsig, 760 So.2d at 184 (“[A]
speaker cannot invoke a ‘pure opinion’ defense if the facts underlying the opinion are
27
false or inaccurately presented.”); Eastern Air Lines, Inc. v. Gellert, 438 So.2d 923, 927
(Fla. 3d DCA 1983) (“[A] statement that although ostensibly in the form of an
opinion ‘implies the allegation of undisclosed defamatory facts as the basis for the
opinion’ is actionable.”).
Rather, a court must “construe the statement in its totality, examining not
merely a particular phrase or sentence, but all of the words used in the publication”
and “consider the context in which the statement was published,” in order to
determine whether a statement constitutes pure opinion. Dreggors, 995 So.2d at 551
(quoting Hay, 450 So.2d at 295); see also Hoch v. Rissman, Weisberg, Barrett, 742 So.2d
451, 460 (Fla. 5th DCA 1999) (stating that one looks to the totality of the statement,
the context in which it was published, and the words used to determine whether the
statement is pure or mixed opinion). “All of the circumstances surrounding the
publication must be considered, including the medium by which it was disseminated
and the audience to which it was published.” Dreggors, 995 So.2d at 551 (quoting Hay,
450 So.2d at 295) (emphasis added); see also Turner v. Wells, 879 F.3d 1254, 1263 (11th
Cir. 2018) (admonishing plaintiff for “cherry pick[ing] statements . . . out of context”);
Dibble v. Arvich, No. 14-CIV-61264, 2015 WL 12532615, at *6 (S.D. Fla. July 29, 2015)
(“In determining whether an allegedly defamatory statement is an expression of fact
or an expression of pure opinion and/or rhetorical hyperbole, context is paramount.”)
(internal quotations and citation omitted) (emphasis added).
28
The issue of whether a statement is one of fact or opinion and whether a
statement of fact is susceptible to defamatory interpretation is generally a question of
law for the court, see Turner, 879 F.3d at 1262–63, which assesses whether the disputed
statement is “‘sufficiently factual to be susceptible of being proved true or false,’” and
whether it is actually false. Id. (quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990)).
However, “when a publication is ‘susceptible of two reasonable interpretations,’ one
of which is defamatory,” then the issue becomes one of fact for the jury. Basulto v.
Netflix, Inc., No.: 1:22-cv-21796-MORENO/GOODMAN, 2023 WL 7129970, * 22
(S.D. Fla. Sept. 20, 2023).
CNN repeatedly, falsely, maliciously, branded Plaintiff as purveying the “Big
Lie,” a term used by Hitler in Mein Kampf, in an effort to associate Plaintiff with Hitler
and Nazism and the despicable tactics used to support Nazi crimes. DE:1:7–12, ¶¶
16–21; DE:1:14–16, ¶¶ 26–28; see also Joseph Goebbels: On the Big Lie. The “Big Lie,” as
purveyed by Hitler and the Nazi regime, is commonly understood to mean, “If you
tell a lie big enough and keep repeating it, people will eventually come to believe it.”
Joseph Goebbels: On the Big Lie. CNN’s anchors and commentators repeatedly used this
damning phrase, including a direct reference to Hitler’s Minister of Propaganda,
29
Joseph Goebbels,5 to wrongfully describe Plaintiff and his questioning of the 2020
Presidential election.6
In the January 25, 2021 publication, Ben-Ghiat wrote “This is Trump’s Big Lie,’
a brazen falsehood with momentous consequences.” Ben-Ghiat then went on to
falsely describe Plaintiff as “a leader of authoritarian intentions and tendencies,” and
stated that “Trump took a different tack, unleashing a barrage of disinformation
common in authoritarian states,” by telling “more than 30,000 documented lies in
public (30,573 was The Washington Post’s final tally), on Twitter, at rallies and in
interviews.” DE:1:15, ¶ 28(a).
In the July 5, 2021 publication, Cillizza maliciously likened Plaintiff to
propagandist Joseph Goebbels, writing that “[o]ne can only hope that Plaintiff was
5
See https://en.wikipedia.org/wiki/Joseph_Goebbels (“Paul Joseph Goebbels
was a German philologist and Nazi politician who was the ... chief propagandist for the
Nazi Party, and then Reich Minister of Propaganda from 1933 to 1945. He was one of
Adolf Hitler’s closest and most devoted followers, known for his skills in public speaking
and his deeply virulent antisemitism which was evident in his publicly voiced views. He
advocated progressively harsher discrimination, including the extermination of the Jews
in the Holocaust.”).
6
The false association of Plaintiff with Nazi propaganda and lies has become
commonplace in the media and public arena, and was invoked as a cudgel by President
Biden during his 2020 Presidential campaign and echoed by the media. See
https://www.politico.com/news/2020/09/26/joe-biden-trump-joseph-goebbels-422047
(Biden: “Trump is ‘sort of like Goebbels,’ Biden said, invoking the name of Joseph
Goebbels, the mastermind of Nazi Germany’s propaganda machine. “You say the lie long
enough, keep repeating it, repeating it, repeating it, it becomes common knowledge”
among voters.).
30
unaware that his quote was a near-replication of this infamous line from Nazi Joseph
Goebbels: ‘If you tell a lie big enough and keep repeating it, people will eventually
come to believe it.’” DE:1:15, ¶ 28(b).
In the September 15, 2021 publication, Cillizza wrote that Plaintiff “continued
to push the Big Lie that the election was somehow stolen despite there being zero
actual evidence to back up that belief.” DE:1:15–16, ¶ 28(c).
During the January 16, 2022 broadcast, which aired clips of Plaintiff, Tapper
commented that “while Martin Luther King III was in Arizona rallying to expand
voting rights, Donald Trump was, the same day, in the same state, doing the exact
opposite, continuing to push his big lie,” and that “[t]here is a reason Trump was in
Arizona, to push the legislature to disenfranchise the state’s voters based on all of his
deranged election lies.” DE:1:16, ¶ 28(d).
In the February 11, 2022 publication, Cillizza wrote “Trump’s election lie is on
the march” with a link entitled “New poll suggests Trump 2020 election lie is
working,” claiming that “Trump has created a constant low-level buzz within the
American electorate that something is wrong with the way we conduct elections. That
he has no proof doesn’t seem to matter; by sheer repetition, his false claims are
wheedling their way into the consciousness of the public.” DE:1:16, ¶ 28(e).
Each of these publications more than impugns Plaintiff’s honesty and
trustworthiness, characteristics necessary for virtually any person to engage in his or
31
her profession, including, most notably, a President of the United States. Underlying
each publication is CNN’s clear implication that Plaintiff, in questioning the integrity
of the 2020 Presidential election, is using Hitler’s “Big Lie” strategy as part of an
authoritarian scheme to disenfranchise voters and strip them of their rights and
freedoms. Each of the publications contains statements of purported fact—including
that Plaintiff told massive, proven lies to the public and that there was no significant
wrongdoing in the 2020 Presidential election—that the complaint alleges are false and
thus defamatory under Florida law.
None of the publications, when examined in light of their full language and
context, lend any support to a determination that CNN “accurately presented the
underlying facts of the situation before making the allegedly defamatory remarks,”
which is required for a court to find the statements constituted pure opinion. See
Lipsig, 760 So.2d at 184 (“[A] speaker cannot invoke a ‘pure opinion’ defense if the
facts underlying the opinion are false or inaccurately presented.”); Eastern Air Lines,
438 So.2d at 927 (“[A] statement that although ostensibly in the form of an opinion
‘implies the allegation of undisclosed defamatory facts as the basis for the opinion’ is
actionable.”); Zambrano v. Devanesan, 484 So.2d 603, 606 (Fla. 4th DCA 1986)
(“[W]here the speaker or the writer neglects to provide the audience with an adequate
factual foundation prior to engaging in the offending discourse, liability may arise.”).
Indeed, none of the publications actually point to any evidence of Plaintiff allegedly
32
lying or the integrity of the 2020 Presidential election.
Contrary to the district court’s assertion, repeated attribution to Plaintiff of
engaging in the “Big Lie” links Plaintiff with Hitler in the public eye, and does not
require the type of “stacking of inferences” found inadequate to set forth a claim for
defamation in Church of Scientology of California v. Cazares, 638 F.2d 1272, 1288 (5th Cir.
1981), premised on a speaker’s use of the phrase “helter skelter.” DE:31:8. The “Big
Lie”—originated, used and associated with Hitler and Nazi propaganda, as proven by
Defendant’s use of images of Hitler and Nazis when discussing the term—is not
remotely comparable to the far less recognizable, anodyne phrase “helter skelter.”
While used as the title of a prosecutor’s book about Charles Manson, id. at 1287, the
term “helter skelter” is otherwise of innocuous origin, meaning and use; the phrase is
defined in the dictionary as simply “confusion” or “disorder.” Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/helter-skelter.
The “Big Lie,” by contrast, remains a notorious term synonymous with Hitler,
Nazi propaganda and gross distortions of truth. See, e.g., Merriam Webster Dictionary,
https://www.merriam-webster.com/dictionary/big%20lie (defining “Big Lie” as “a
deliberate gross distortion of the truth used especially as a propaganda tactic” and
specifying further that “the first known use of the big lie was in 1939”). Moreover,
CNN’s references to the “Big Lie” in relation to Plaintiff are pervasive and thematic,
where CNN’s use of that phrase has been accompanied by an onslaught of
33
statements, made repeatedly by multiple CNN newscasters condemning Plaintiff’s
“Big Lie” and other “lies,” while simultaneously linking Plaintiff to Nazi leader Hitler,
Nazi Chief of Propaganda Goebbels, and Nazi propaganda. DE:1:14–16, ¶¶ 27–28.
As alleged in the complaint, CNN has used the term the “Big Lie” in reference to
Plaintiff more than 7,700 times, and has linked Trump within ten words of “Hitler” or
“Nazis” on at least 645 occasions. DE:1:12, 14, ¶¶ 20, 27.
The district court’s patently inaccurate analogy of the challenged statements in
this case to the phrase “helter skelter” by a single speaker in Church of Scientology,
DE:31:8, reflects the district court’s failure to consider CNN’s challenged statements
in light of the totality of relevant circumstances, which disclose a media outlet that, in
purporting to report the news, wrongfully ascribes to Plaintiff gross and myriad lies, in
addition to the “Big Lie,” on an ongoing, regular basis. The primary objectionable
statement at issue in Church of Scientology was as follows: “I don’t see,” [City of
Clearwater Mayor] Cazares said recently, “how we can allow a group into our town
and be gung-ho about it, and be clear in our minds about it, and not go about it in a
helter-skelter fashion.” Id. at 1287. While “gung-ho” and “clear” were arcane terms
of art allegedly associated with the Church of Scientology, and “helter skelter” was
associated with a book about Manson, these were clearly used as double entendres,
where all three phrases are also perfectly conventional terms with non-negative
meanings, and the statement contains no direct, or even implicit, attribution of violent
34
criminality to the Church of Scientology. See also id. at 1288 (noting, while rejecting,
mayor’s assertion that his statement was meant to be humorous) 7. By contrast,
CNN’s wholly serious statements directly link Plaintiff with vile, genocidal
propaganda, including the widely known and condemned “Big Lie” strategy of Hitler
and Nazism.
The seriousness with which CNN’s conveyed its “Big Lie” denunciations of
Plaintiff, including the January 6, 2022 “Special Report,” with its deliberate
comparisons of Plaintiff to Hitler and juxtapositions of Hitler and Nazi Germany with
footage of Plaintiff, is confirmed by the many viewers who believed them, as reflected
in their ensuing Twitter comments, all of which established the injurious impact of
CNN’s repeated false publications. DE:1:7–9, ¶¶ 16-17.
Construing these publications in their totality, including by examining the
words used, the ominous tones in which they were conveyed, and the uniquely
voluminous amount of the broadcasts, it is certainly plausible that Plaintiff can prove
to a jury of reasonable minds that CNN’s broadcasters—who were part of “the most
trusted name in news,” see CNN Press Room, CNN World Fact Sheet, at
https://cnnpressroom.blogs.cnn.com/cnn-fact-sheet/—knew their statements were
7
The ruling in Church of Scientology arose in the disparate procedural context of
summary judgment as to plaintiff’s third amended complaint, 638 F.2d at 1285—unlike
the instant case, in which the district court, granting dismissal with prejudice and
disallowing Plaintiff’s ensuing request for leave to amend, unfairly precluded even a single
amendment of the complaint. See Argument at II(A), infra.
35
false and uttered them anyway, knowing they would damage Plaintiff’s reputation.
3. The challenged statements, which were seriously

conveyed and expressed as assertions of fact, were not
mere rhetorical hyperbole.
The district court further erred in finding that, while CNN’s statements were
“odious” and “repugnant,” such “references in the political discourse” were nothing
more than bad rhetoric. DE:31:9.
A defendant can only escape liability for defamation by contending it is
“rhetorical hyperbole” when “the language itself negates the impression that the writer
was seriously maintaining that the plaintiff committed the particular act forming the
basis of the defamation,” which is definitively not the case here. Fortson v. Colangelo,
434 F. Supp. 2d 1369, 1378–79 (S.D. Fla. 2006).
Here, the district court stated that “[n]o reasonable viewer could (or should)
plausibly” connect CNN’s use of the phrase the “Big Lie” in relation to Plaintiff’s
election challenge to a plausible inference that Plaintiff advocates the persecution and
genocide of Jews or any other group of people. The district court’s interpretation of
CNN’s use of the phrase the “Big Lie” misses the mark, however. As previously set
forth, CNN used the terms “Nazi,” “Hitler,” “fascist,” and the “Big Lie” to draw a
direct and literal nexus, which does not exist, between Plaintiff and Hitler, Nazism,
and fascist leadership, in order to establish that Plaintiff is somehow a despot who was
trying to disenfranchise voters and strip Americans of their rights and freedoms by
36
wrongfully questioning the integrity of the 2020 Presidential election, not that Plaintiff
was advocating the persecution and genocide of Jews or any other group.
The district court improperly decontextualized and unduly isolated CNN’s
defamatory statements, failed to consider the meaning the statements actually
conveyed to viewers, and read distinguishable precedent too broadly.
A particular phrase cannot be viewed in a vacuum; instead, the court must
examine “all of the words used in the publication,” and consider “[a]ll of the
circumstances surrounding the publication, including the medium by which it was
disseminated and the audience to which it was published.” See Dreggors, 995 So.2d at
551 (emphasis added); see also Fortson, 434 F. Supp. 2d at 1378–79 (stating that to
determine if a statement is “an expression of fact or an expression of rhetorical
hyperbole, context is paramount”). Construed in their totality, including that they
were broadcast by a network proclaiming itself the “most trusted name in news,” the
challenged publications posit dire assertions of purported fact, not mere rhetorical
hyperbole. CNN’s email response to Plaintiff’s demand letter, wrongfully averring
that “it is well-established that the 2020 Presidential election was unaffected by fraud,”
DE:1:4–5, confirms the factual nature of its challenged statements, which were neither
rhetorical hyperbole nor pure opinion but assertions of what the CNN broadcasters
conveyed as being facts.
CNN’s publications seriously attempt to falsely state that Plaintiff intentionally
37
followed Hitler’s strategy to advance his own authoritarian political agenda. CNN
clearly intended that its publications be taken literally, not as part of conventional
political discourse. And it is certainly reasonable for the average CNN viewer to
believe that CNN was an unbiased news source, not an opinion-driven platform. Bennet
v. Hendrix, 325 Fed. Appx. 727, 741 (11th Cir. 2009) (recognizing that “the tone of the
speech and its medium of expression” are important considerations when determining
whether a statement constitutes rhetorical hyperbole). In fact, at least some of CNN’s
audience members actually wrongfully believed that Plaintiff was a fascist leader—akin
to the most repugnant figure in modern history.
Moreover, as further discussed below, whether CNN’s publications are
reasonably susceptible to a defamatory meaning is a question of fact for the jury, not
the district court, and the district court erred in making this determination.
4. The determination of whether the challenged

statements were reasonably capable of a defamatory
meaning presented factual issues that, under Florida
law, should properly have been left to the jury’s
determination.
The district erred in prematurely dismissing Plaintiff’s defamation claims
without a more fully developed record. “[I]f an allegedly defamatory publication is
reasonably susceptible of two meanings, one of which is defamatory and one of which
is not, it is for the trier of fact to determine the meaning understood by the average
reader.” Rubin v. U.S. News & World Rep., Inc., 271 F.3d 1305, 1306 (11th Cir. 2001)
38
(citing Ford v. Rowland, 562 So.2d 731, 734 (Fla. 5th DCA 1990)); see also Johnson v.
Borders, 36 F.4th 1254, 1275 (11th Cir. 2022) (“Where a statement is subject to two
possible interpretations and one is defamatory, it is for the jury to decide whether the
statement is in fact defamatory.”) (citing Hallmark Builders, Inc. v. Gaylord Broad. Co.,
733 F.2d 1461, 1463 (11th Cir. 1984)).
The district court erred in ruling that even if CNN’s linkage of Plaintiff to the
“Big Lie” could plausibly compel a reasonable viewer to perceive him as Hitlerian or
authoritarian, those attributions are not statements of fact subject to defamation laws
because the terms are imprecise. DE:31:9–10.
CNN did not, however, convey these terms in an ambiguous or vague way.
Rather, the totality of the publications and the context in which the publications were
made—under the guise of the “most trusted name in news”—make clear that CNN
intended to, and did, use the terms “Nazi,” “Hitler,” “fascist,” and the “Big Lie” to
draw a direct and literal comparison between Plaintiff and Hitler, Nazism, and fascist
leadership in order to try and create the undeniable, completely false, implication that
Plaintiff is a despot who was trying to disenfranchise voters and strip Americans of
their rights and freedoms by wrongfully questioning the integrity of the 2020
Presidential election. Indeed, people actually believed what CNN’s anchors and
commentators were saying. At a minimum, this determination should have been left
for the jury to decide.
39
Finally, while the district court neither addressed nor decided whether Plaintiff
plausibly alleged the defamation element of actual malice, such that it formed no part
of the rulings on appeal, the record shows he more than sufficiently pled actual
malice, including by alleging CNN’s deliberate and relentless attacking of Plaintiff by
labeling Plaintiff’s concerns about the 2020 Presidential election the “Big Lie,”
likening Plaintiff to Hitler, and linking him with Nazism and the very form and design
of Nazi propaganda used for purposes of oppression and rights violation. A plaintiff
need only proffer facts giving rise to a “plausible inference” of actual malice. See
Dershowitz v. Cable News Network, Inc., 541 F. Supp. 3d 1354, 1367–68 (S.D. Fla. 2021)
(holding that plaintiff’s allegations plausibly plead a factual basis from which “actual
malice” can be inferred).8
II. THE DISTRICT COURT ABUSED ITS DISCRETION IN

DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION OR REHEARING AND
ALTERNATIVE MOTION FOR LEAVE TO AMEND, WHERE
THE C OU R T APPLI ED INAPT A ND UN D UL Y
CONSTRICTED STANDARDS IN EVALUATING CLEAR
ERROR OR MANIFEST INJUSTICE AND DENYING LEAVE
8
CNN’s objective to destroy Plaintiff and anyone associated with him goes
beyond mere political positioning and reflects obsessional hatred and malice.
Additionally, if this Court were to reach this issue and conclude otherwise, Plaintiff
respectfully requests that the Court revisit the actual-malice standard under New York
Times v. Sullivan, 376 U.S. at 280. Recognizing this Court cannot overrule Sullivan, Plaintiff
makes this argument to preserve the issue in the event of further review.
40
TO AMEND, CONTRARY TO FEDERAL PROCEDURAL

REQUIREMENTS.
A. The denial of Plaintiff’s motion for leave to amend was an abuse of

discretion.
The district court abused its discretion in denying Plaintiff’s post-dismissal
request for leave to amend, where the denial was premised on an overly restrictive
pleading standard at odds with governing authority. The record confirms that
following dismissal of the complaint, no judgment ever issued or was entered; nor did
the court indicate that no amendment was possible or that dismissal of the complaint
constituted dismissal of the action. In these circumstances, leave to amend should
have been “granted liberally.” Czeremcha v. International Ass’n of Machinists and Aerospace
Workers, AFL-CIO, 724 F.2d 1552, 1556 & n. 6 (11th Cir. 1984) (clarifying Circuit case
law and holding that, after dismissal of a complaint, the plaintiff “may still move the
court for leave to amend, and such amendments should be granted liberally,” unless the court
indicated an amendment was not possible or that the complaint’s dismissal constituted
dismissal of the action) (citing Dowdy v. Proctor & Gamble Mfg. Co., 267 F.2d 827, 828
(5th Cir. 1959) (emphasis added)).
The only reason given by the district court for its denial was that allowing leave
to amend would give Plaintiff a “second bite at the appeal” since he had not sought
leave to amend before the complaint was dismissed. DE:37:2. However, this Court
has imposed no such barrier on seeking leave to amend following dismissal of a
41
complaint, and instead has made clear that leave to amend in this circumstance must
be broadly allowed. Czeremcha, 724 F.2d at 1556. Indeed, leave to amend is
“particularly appropriate following dismissal of a complaint for failure to state a claim.”
Thomas v. Farmville Mfg. Co., 705 F.2d 1307, 1307 (11th Cir. 1983) (emphasis added).
Moreover, “in the absence of a declared or apparent reason, an outright refusal to
grant leave to amend is an abuse of discretion.” Id. (citing Foman v. Davis, 371 U.S.
178, 182 (1962)).
Notably, Plaintiff’s motion for leave to amend, filed within ten days of
dismissal of the complaint, was not untimely, nor is there any indication that granting
leave to amend would have prejudiced the defendant. See Griggs v. Hinds Junior College,
563 F.2d 179, 180 (5th Cir. 1977) (reversing denial of post-dismissal leave to file
amended complaint for abuse of discretion; noting no indication motion for leave to
amend was untimely or would prejudice defendant). Nor did the district court state
that no amendment was possible or that dismissal of the complaint constituted
dismissal of the action. Cf. Czeremska, at 1556 n. 6.
Application of these established principles to the instant case militates firmly in
favor of a determination that the district court abused its discretion in denying
Plaintiff’s motion for leave to amend. See Thomas, 705 F.2d at 1307 (concluding that
the district court abused its discretion in denying leave to amend sought 13 days after
dismissal of a complaint for failure to state a claim).
42
As in Thomas, the instant complaint was dismissed for failure to adequately state
a claim. Within less time (only 10 days) than that taken by the plaintiff in Thomas,
President Trump moved for reconsideration and, alternatively, for leave to amend his
complaint to remedy the pleading deficiencies in the initial complaint, including to set
forth an explicit claim for defamation by implication as elucidated in his motion.
DE:32.
Further, while Plaintiff’s motion for leave to amend was filed alternatively with
a motion for reconsideration or rehearing under Rules 59 and 60, DE:31:2,11–15, the
fact that no judgment was ever entered requires application of a liberal standard for
allowing amendment of the complaint, as this Court held in Czeremcha.9 724 F.2d at
1556. See also MacPhee v. Midex Group, Inc., 73 F.4th 1220, 1249–50 (11th Cir.
2023)(recognizing, with approval, the liberal pleading standard as held by Czeremcha).
All of these circumstances, viewed in accordance with prevailing authority,
compel reversal of the district court’s unsupported denial of Plaintiff’s request for
leave to file an amended complaint. See Czeremcha, 724 F.2d at 1556; Thomas v.
Farmville Mfg. Co., 705 F.2d at 1307. See also Moorer v. Demopolis Waterworks & Sewer Bd.,
374 F.3d 994, 996–97 (11th Cir. 2004) (application of incorrect legal standard or clear
9
As the Court in Czermcha additionally found, “The plaintiff may also move for
relief under Fed. R. Civ. P. 59(e) or 60(b) on the basis of proposed amendments even
after the action is dismissed and final judgment is entered.” 724 F.2d at 1556 & n. 9
(citing Moore’s Federal Practice ¶ 15.07 [2]).
43
error of judgment constitutes abuse of discretion).
B. The district court abused its discretion in denying the motion for
reconsideration of its order dismissing the complaint with prejudice,
where the court’s failure to consider the full context of the challenged
statements amounted to clear error or manifest injustice supporting
reconsideration.
The district court, in addressing the motion for reconsideration of its order
dismissing the complaint with prejudice, applied an inapt standard of assessing the
clear error or manifest injustice by failing to consider the entirety of the circumstances
surrounding CNN’s publication of the challenged statements. Those surrounding
circumstances include huge numbers of statements, as well as visual imagery,
unmistakably trying to link Plaintiff to Hitler and Nazism, as set forth in the
complaint.
Moreover, the district court, after citing the applicable test for clear error or
manifest injustice (“[C]lear error or manifest injustice occurs where the Court ‘has
patently misunderstood a party, or has made a decision outside the adversarial issues
presented to the Court by the parties, or has made an error not of reasoning but of
apprehension.” Great Lakes Ins. SE v. Boat Rental Miami, Inc., 2020 WL 264674, at *6
(S.D. Fla. Jan. 17, 2020) (quotations omitted)), appeared to reframe its understanding
of that standard in a manner unrelated to the case.10
10
DE:37: 1 n. 1 (“For example, assume there is a game with no ties, only winners
and losers. Three upper echelon teams play the game against a variety of opponents. One
team plays an entire season and only wins. Two other teams play an entire season and
44
The district court’s metaphorical explanation of the clear error or manifest
error standard (even if stated in jest) is inconsistent with the governing standard, and
any applicability to the instant circumstances appears ambiguous and inapt. Where
the district court failed to evaluate the allegations of the complaint in light of the full
context in which the challenged statements were made, including thousands of
defamatory statements calling Plaintiff a purveyor of the “Big Lie” propaganda
strategy originated and employed by, and notoriously associated with, Hitler and
Nazis, as well as accompanying visual imagery of Hitler, its ruling was clearly
erroneous or manifestly unjust, warranting the grant of Plaintiff’s motion for
reconsideration.
CONCLUSION
For the foregoing reasons, Appellant, President Donald J. Trump, respectfully
requests that the Court reverse the orders of dismissal and denial of reconsideration
or rehearing or, alternatively, for leave to amend, and remand the case to the district
court for further proceedings.
lose one game each. It is beyond dispute that the undefeated team has done everything
it was asked to do—it has never failed. The teams that have lost have not succeeded in
doing what they were asked to do. To reward the losing teams over the winning team is
a manifest error.”).
45
Respectfully submitted,
RICHARD C. KLUGH, P.A. BRITO, PLLC

40 N.W. 3rd Street, PH1 2121 Ponce de Leon Blvd., Suite 650
Miami, Florida 33128 Coral Gables, Florida 33134
Phone: (305) 536-1191 Tel: (305) 440-4385
By: Richard C. Klugh By: Alejandro Brito

Richard C. Klugh Alejandro Brito
Counsel for Appellant, President Donald J. Trump
46
CERTIFICATE OF COMPLIANCE
Undersigned counsel certifies that this brief complies with the type-volume
limitation of Fed. R. App. P. 5(c)(1), as well as 11th Cir. R. 32-4, because, excluding
the parts of the brief exempted by Fed. R. App. P. 32(f), it contains 10,775 words.
Undersigned counsel certifies that this brief complies with the typeface requirements
of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced typeface using Word
Perfect in 14-point Garamond font.
Richard C. Klugh
Richard C. Klugh
CERTIFICATE OF SERVICE
I certify that on March 29, 2024, the foregoing was filed with the Clerk of the
Court using the Court’s CM/ECF system, which will send a copy to all counsel of
record and that requisite copies of the brief were mailed to the Court.
Richard C. Klugh
Richard C. Klugh
47

Trump Sues CNN Appeal Initial Brief

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USCA11 Case: 23-14044 Document: 19 Date Filed: 03/29/2024 Page: 1 of 58

IN THE UNITED STATES COURT OF APPEALS

CABLE NEWS NETWORK, INC.,

On Appeal from the United States District Court

APPELLANT’S INITIAL BRIEF

Richard C. Klugh, Esq. Alejandro Brito, Esq.

Counsel for Appellant, President Donald J. Trump

CERTIFICATE OF INTERESTED PERSONS AND

Appellant files this Certificate of Interested Persons and Corporate Disclosure

Bryan Cave Leighton Paisner LLP

Cable News Network, Inc.

Gunster, Yoakley & Stewart, P.A.

Ifrah Law PLLC

Singhal, Hon. Raag

Underwood, Jr., Brian M.

Valle, Hon. Alicia O.

Warner Bros. Discovery, Inc. (Nasdaq: WBD)

STATEMENT REGARDING ORAL ARGUMENT

Appellant, President Donald J. Trump, respectfully requests oral argument.

appeal, including the fact-bound questions of the meaning conveyed by the

numerous defamatory statements.

CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . C1

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . i

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Course of Proceedings, Disposition in the District Court,

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ARGUMENT AND CITATIONS OF AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . 17

I. The District Court’s Dismissal of the Complaint with Prejudice Was

A. The district court erred in unduly constricting the scope of review

Plaintiff with Hitler’s lies and Nazism . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1. The district court foreclosed comprehensive consideration

2. The challenged statements were false factual allegations that

3. The challenged statements, which were seriously conveyed

B. The determination of whether the challenged statements were

A. The denial of Plaintiff’s motion for leave to amend was an

B. The district court abused its discretion in denying the

consider the full context of the challenged statements

Basulto v. Netflix, Inc.

Bell Atl. Corp. v. Twombly

Church of Scientology of California v. Cazares

Czeremcha v. International Ass’n of Machinists and

Dershowitz v. Cable News Network, Inc.

Dowdy v. Proctor & Gamble Mfg. Co.

Dreggors v. Wausau Inc. Co.

Eastern Air Lines, Inc. v. Gellert

From v. Tallahassee Democrat, Inc.

Great Lakes Ins. SE v. Boat Rental Miami, Inc.

Griggs v. Hinds Junior College

Hallmark Builders, Inc. v. Gaylord Broad. Co.

Hay v. Indep. Newspapers, Inc.

Hoch v. Rissman, Weisberg, Barrett

Ironworkers Local Union 68 v. Astrazeneca Pharms., LP,

MacPhee v. Midex Group, Inc.

Michel v. NYP Holdings, Inc.

Milkovich v. Lorain J. Co.

Moorer v. Demopolis Waterworks & Sewer Bd.

New York Times v. Sullivan

Rubin v. U.S. News & World, Inc.

Thomas v. Farmville Mfg. Co.

Toole v. Baxter Healthcare Corp.

Town of Sewall’s Point v. Rhodes

Statutes and Other Authorities

U.S. Const., amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27