By: Skylar Kleinman ‘27
Volume XI – Issue I – Fall 2025
I. INTRODUCTION
In July 2025, President Donald Trump filed a lawsuit in Florida federal court seeking $10 billion in defamation damages from The Wall Street Journal and its parent companies, Dow Jones and News Corp., for alleging that Trump wrote a birthday letter to convicted sex offender Jeffrey Epstein in 2003. The article, “Jeffrey Epstein’s Friends Sent Him Bawdy Letters for a 50th Birthday Album. One Was From Donald Trump,” described the contents of the letter as “reviewed by the Journal”: lines of typewritten text surrounded by the outline of a naked woman, footed by Trump’s signature. [1] In September, the Journal published an image of the letter itself and reported that the House Oversight Committee had received it in its ongoing Epstein investigation. [2] While the article’s editorial merits remain unclear—the Journal motioned to dismiss Trump’s claims, contending that the article is true, while Trump continues to deny ever writing any birthday letter—the claim itself significantly marks Trump’s first defamation suit as sitting president, and the first time a sitting president has ever sued for defamation. [3]
Legal commentary predicting the outcome of Trump v. Wall Street Journal (WSJ) (1:25-cv-23232 (S.D. Fla. 2025)) defers to the “actual malice” standard established in New York Times Co. v. Sullivan (376 U.S. 254 (1964)), [4] in which the Court held that plaintiffs, as public officials, must prove that statements were made with “actual malice,” or “knowledge that it was false or with reckless disregard of whether it was false or not.” [5] Per Sullivan’s high-bar standard, Trump, like most plaintiffs, is unlikely to prevail. [6] However, this article aims to shift the scope of analysis from Sullivan toward modern standards that balance journalistic interests in both virality and integrity in reporting on matters of government accountability. [7] The application of the fair report privilege against political plaintiffs in Gubarev v. BuzzFeed, Inc. (0:17- cv-60426 (S.D. Fla. 2018)) specifically protects a strong public interest in maintaining government transparency and accountability in the context of reporting related to governmental and quasi-governmental documents, an aim further enabled by contemporary digital reporting with the capacity to reach mass audiences. [8] The fair report privilege effectively protects journalists from incurring damages for inflicting reputational harm produced as a byproduct of reporting, as long as potentially defamatory statements are accurate to official events or proceedings. Gubarev, like WSJ, considers whether political plaintiffs may prosecute such harm, inviting potential application and further discussion of the opportunities and risks for reporters in an unprecedented era of high-stakes journalism that must carefully balance First Amendment rights, reputational blowback, and public trust.
First, I will explain the application of the fair report privilege in Gubarev. Second, I will examine the prominent arguments in WSJ. Finally, I will consider legal and social arguments linking Gubarev to the calculus of the court in WSJ.
II. GUBAREV V. BUZZFEED, INC. (2018)
In deciding the issue of defamation in WSJ, the court should consider the letter’s involvement in the official Epstein investigation led by the House Oversight Committee, shifting the scope of analysis from the nature in which statements were made [i.e., the “actual malice” standard] towards the content of the statements themselves. Like Gubarev, this analysis aims to protect public interests in government transparency and accountability. The judgment in Gubarev may apply due to parallels, including the involvement of political plaintiffs, reporting on official proceedings, and the virality of the alleged defamatory statements. At minimum, Gubarev invites the court to consider the ethical implications of such reporting that inflicts greater political harm than its 20th-century vis-à-vis due to polarization and digital forums, which jointly incentivize both reporters and political plaintiffs to weaponize reporting and litigation respectively in pursuit of a perceived political advantage. This section will discuss the application of the fair report privilege in Gubarev juxtaposed against the rejection of the neutral report privilege. The following section will aim to apply the former to WSJ.
The facts of Gubarev involve the publication of the Steele dossier, a thirty-five-page report authored by British spy Christopher Steele, alleging that Trump colluded with Russia in the 2016 U.S. presidential election. [9] Intelligence released the dossier to the Obama Administration in official proceedings, and the U.S. Senate Committee on the Judiciary released it to the public in 2020. [10] However, BuzzFeed leaked the dossier in a 2017 article, reporting that the document had “circulated for months” among “journalists, lawmakers, and intelligence officials.” [11] While others ambiguously reported on the dossier, [12] BuzzFeed defended its controversial leak by stating, “Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of government.” BuzzFeed disclaimed that the dossier included “specific, unverified, and potentially unverifiable allegations of conduct between Trump aides and Russian operatives, and graphic claims of sexual acts documented by the Russians,” in addition to “some clear errors.” Among these allegations, the dossier stated that tech executive Aleksj Gubarev used “botnets and porn traffic to transmit viruses, plant bugs, steal data and ‘conduct altering operations’ against the Democratic party leadership.” Gubarev sued BuzzFeed for defamation, alleging that the dossier was published “without reasonable care for, or with reckless disregard as to the truth,” resulting in injury to Gubarev’s reputation and businesses.
The U.S. District Court of Southern Florida found for BuzzFeed in a decision that applied New York Civil Rights Law, [13] s. 74 under which plaintiffs cannot prevail in civil action “for the publication of a fair and true report of any judicial proceeding, legislative proceeding, or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.” [14] In deferring to s.74, the court clarified the intent of the fair report privilege to uphold a ‘public supervision’ or ‘watchdog’ function. Specifically, the privilege intends to protect speakers, not plaintiffs, recognizing that “[t]he public has a strong interest in receiving information about what occurs in official proceedings and public meetings so that it may oversee the performance of public officials and institutions.” [15] However, the court clarified that there must be “more than a mere ‘overlap’ between the subject matter of the report and the subject matter of the proceeding: ‘the ordinary viewer or reader must be able to determine from the publication itself that the publication is reporting on a proceeding…This is to ensure that the reader can ascertain that what is reported as true is that there is an official proceeding underway or official action being taken regarding the allegedly defamatory matter—not that the defamatory statements are true.” Second, the court clarified that “a formal proceeding must be underway at the time of publication.” [16] The court found that a hyperlink in the BuzzFeed article that referenced other reporting on ongoing official proceedings sufficiently satisfied both requirements to apply the fair report privilege. Therefore, the court affirmed the merits of the privilege in cases involving political plaintiffs and clarified a public interest in transparency and accountability. [17] Per the court’s application of the fair report privilege, which permits timely reporting on official proceedings for the sake of public interest, Gubarev could not claim damages. Notably, the court rejected the application of the neutral report privilege, which protects accurate reports of serious charges against public figures by responsible organizations, with the reasoning that such a privilege could perversely protect a defendant who knowingly publishes false statements as long as the content is “newsworthy” and comes from a generally reliable source. [18]
Since Gubarev, courts have applied the fair report privilege in several defamation cases and have expanded the definition of “official proceedings” to include police reports among other quasi-governmental documentation. [19] The trend of litigation demonstrates how courts have been lenient in applying the privilege for the sake of recognizing its intent to uphold public interest in accountability.
III. TRUMP V. WSJ
The context of WSJ within the ongoing Epstein investigations invites a comparative analysis with Gubarev to determine whether the fair report privilege may apply. This section will discuss the legal and social implications of Trump’s lawsuit, for which such an application, discussed in the next section, is significant. First, WSJ represents the first time defamation charges have been filed against the press by the highest political plaintiff, the sitting president of the United States. [20] The significance of Trump’s office has the potential to signal a stronger chilling effect, in which future organizations may be more critical of publishing their own controversial reporting to avoid the expense of possible litigation. Second, WSJ presents the first legal exchange between Trump and a media organization in which editorialists are signaling a fight back. Though Trump lost his defamation claim against BuzzFeed in 2023 involving the 2017 Steele dossier allegations, [21] he achieved multi-million-dollar settlements and concessions from ABC News, CBS, and Meta for a false statement in a story covering a sexual abuse claim against Trump, [22] editing a “60 Minutes” interview with Democratic presidential candidate Kamala Harris, [23] and suspending Trump’s social media accounts in the wake of January 6 respectively. [24] Unlike these media organizations, the Journal is a primary venture of its parent company, [25] News Corp., chaired by Rupert Murdoch, who also operates The New York Post and Fox News. [26] In other words, the Journal has the financial and legal backing to engage in litigation where other organizations have settled, not due to potential litigatory damages—per Sullivan, they likely would have prevailed—but due to sheer expenses. Therefore, courts may significantly defer to WSJ in deciding future cases involving modern defamation suits brought by sitting political plaintiffs.
In deciding the issue of whether the Journal unlwafully defamed Trump, warranting damages, the court would likely find against Trump per the difficulty of meeting the Sullivan standard. [27] The evaluation of “actual malice” is fact-sensitive and would depend on Trump’s privilege, as the plaintiff, to examine editorial processes and reporters’ state-of-mind per notes and interviews collected during discovery. [28] Amid Trump’s claim that his alleged letter to Epstein was fabricated, a finding of fabrication by a third party would still protect the Journal for good-faith reporting on content that it believed to be true. [29]
However, some legal scholars argue that the language in the article itself is sufficient to grant the Journal’s motion to dismiss. [30] The article describes the letter in plain language as “bearing Trump’s name…contain[ing] several lines of typewritten text framed by the outline of a naked woman…hand-drawn with heavy marker…a squiggly ‘Donald’ below her waist.” [31] Per this analysis, the relative objectivity of the language, which accurately describes the later-released image of the letter, holds true, even if the letter is fabricated, diminishing Trump’s likelihood of proving “actual malice.”
While both Sullivan and fact-based analysis usefully evaluate Trump's claims based on intent, this commentary neglects the significance of the Epstein investigation, ongoing official proceedings in which the letter was involved. By applying the judgment of the court in Gubarev to similar facts, this article invites legal discourse to more precisely consider public interests in government accountability and transparency in an age of political plaintiffs and the weaponization of both the press and litigation for political advantage. In other words, where legal commentary sufficiently evaluates language and intent [i.e., “actual malice”], this commentary aimts to evaluate claims by political plaintiffs who seek to suppress reporting based on the potentially adverse findings of the ongoing proceedings themselves. Whereas the former and dominant analysis cleanly evaluates the issue of defamation, this paper focuses specifically on partisan attempts to leverage defamation claims with the aim of silencing unflattering reporting on government affairs. Both analyses address First Amendment rights, but the latter critically implicates political and social considerations largely absent from the former analysis, specifically, how the court may best consider preemptively protecting the free press from becoming a pawn of the most powerful political actors.
IV. EVALUATING FAIR REPORT IN WSJ
Both an interest in government accountability and bipartisan demand for timely information involving the Epstein investigation, which may inherently exclude the complete verification of all statements with potential to cause reputational harm, demonstrate a public interest that the fair report privilege is apt to serve. The facts of WSJ are largely parallel to Gubarev, in which the public held a specific, timely interest in the then-ongoing investigations into the 2016 U.S. presidential election.
In determining whether the article implicates an ongoing official proceeding in a manner conspicuous to the reader, the court must look to the facts of the July article, which alleged but did not show images of the letter. [32] The article states that the letter was “examined by Justice Department officials who investigated Epstein and Maxwell years ago,” however, “[i]t’s unclear if any of the pages are part of the Trump administration’s recent review.” Per precedent in which the fair report privilege applies to statements released prior to the commencement of official proceedings, but must be more heavily scrutinized, [33] the timeline of WSJ invites further discussion in which the court must consider whether the article’s reference to prior, continuing investigation of some legal matters related to Epstein is sufficient. If the court aims to decide consistent with the intent of the fair report privilege, it may recognize these proceedings and further point to the article’s disclaimer, similar to the BuzzFeed’s disclaimer, which noted that “Justice Department officials didn’t respond to requests for comment or address questions,” precluding readers’ inability to distinguish the reported statements from the proceedings themselves. Notably, the Journal article published in September, which included images of the letter, confirmed that the letter was received by the House Oversight Committee in recent investigations, but not prior to at least July 25, nearly a week after the Journal article was published, when two congressmen pressured Epstein estate lawyers to release the birthday book. [34]
Gubarev may help clarify these ambiguities. In its reasoning, the court’s application of the fair report privilege to find for BuzzFeed was predicated on a conspicuous connection between the reporting and ongoing official proceedings investigating the 2016 election, as sufficiently established by the hyperlink to a CNN article which reported broadly on the dossier without specifically identifying Gubarev as under investigation. In other words, the application of the fair report doctrine may be sufficiently triggered by reporting that broadly speaks to the role of statements as unconfirmed in ongoing investigations, even if the potentially defamatory statement is not specifically delineated as being under investigation. The court commented directly on this in its decision, rejecting the plaintiff’s argument that the fair report privilege “should only apply to those portions of the Dossier that BuzzFeed has proven were investigated by the FBI, rather than the Dossier as a whole,” reasoning that “such a line-by-line review would curtail the scope of the privilege and thus restrict the press’s ability to serve its basic function…[T]he privilege exists to protect the media while they gather the information needed for the public to exercise effective oversight of the government.” In applying Gubarev to WSJ, the court may find the privilege where reporting referenced the involvement of the letter in earlier and potentially ongoing proceedings, especially in light of the language which clarifies a reasonable, but unconfirmed belief that the letter may have been involved in recent review. The rejection of such a “line-by-line approach” that would otherwise require a higher standard of verification aims to inhibit antithetical interests interfering with the purpose of the privilege to protect public interest and accountability.
V. CONCLUSION
In addition to classical defamation analyses, which aim to protect First Amendment rights, this article argues that courts must consider and apply the fair report privilege where possible to preserve a public interest in government accountability that supersedes partisan lines. The intent of the fair report privilege to safeguard information access on official proceedings is increasingly critical in an era in which information and official proceedings are weaponized for political advantage, creating a chilling effect that discourages diverse speech that effectively checks the power of a partisan authority. Therefore, an analysis appreciating the full extent of legal protections of information for the sake of transparency is critical.
As journalism continues to expand across digital enterprises, media organizations will only gain greater audiences, which implicates the potential for increased reputational harm in reporting on official proceedings. The trend of litigation against these organizations creates a sense of urgency in which courts should consider the fair report privilege and other protections to affirm the sanctity of the press, even and especially when reporting on high-stakes stories under good faith. The fair report doctrine is therefore necessary to encourage reporting and preserve public access to timely knowledge on government proceedings; without it, political plaintiffs are empowered to shrink First Amendment rights for personal gain at the expense of stringent editorial investigation and government accountability.
Endnotes
[1] Khadeeja Safdar & Joe Palazzolo, “Jeffrey Epstein’s Friends Sent Him Bawdy Letters for a 50th Birthday Album. One Was From Donald Trump,” The Wall Street Journal, July 17, 2025, https://www.wsj.com/politics/trump-jeffreyepstein-birthday-letter-we-have-certain-things-in-commonf918d796?gaa_at=eafs&gaa_n=AWEtsqesbDNh8xyMLuCwee_IdeToAPfh6RkChXna-VnJIyReU8LZ_iPob-d7atildU%3D&gaa_ts=6920d7c5&gaa_sig=RrKZH00vUURvYaGgGE74Rs4p0TMwBZgerfKINRUxPzjOw22D17rcT3U ts4pYNSEyMaPy6hgMLuMtWEQbTljHHg%3D%3D.
[2] Khadeeja Safdar & Joe Palazzolo, “Epstein Birthday Letter With Trump’s Signature Revealed,” The Wall Street Journal, September 8, 2025, https://www.wsj.com/us-news/law/epstein-birthday-book-congress-9d79ab34?gaa_at=e afs&gaa_n=AWEtsqe2Hta5KiPr103sDq5GM5oGXzNYEWej50HHjrU3chM82d7yiyjLex1bEb_pEo%3D&gaa_ts=690d227a&gaa_sig=aQPn1NQm3_h25UFer5pd9bnU64JZ9x2yf75_yslKknvj3eC2PmxDRR3TZwtUNyC9nITPD3oAS5GRzYq8aKiOw%3D%3D.
[3] David Bauder, “Banishing a reporter: Trump escalates battle with Wall Street Journal over Epstein story,” AP News, July 21, 2025, https://apnews.com/article/trump-epstein-wall-street-journal-b006f3ef25e6b4ab910cc3b41c86 5227.
[4] Kevin Goldberg, “President Donald Trump Sues The Wall Street Journal: First Amendment Analysis,” Freedom Forum, July 22, 2025. https://www.freedomforum.org/trump-wall-street-journal-first-amendment-defamation/.
[5] New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
[6] David Post, “Trump v. The Wall Street Journal,” Reason, July 24, 2025, https://reason.com/volokh/2025/07/24/ trump-v-the-wall-street-journal/.
[7] Jonathan Peters, “In dossier lawsuit, BuzzFeed’s ‘fair-report’ defense survives,” Columbia Journalism Review, June 6, 2018, https://www.cjr.org/united_states_project/buzzfeed-trump-dossier-lawsuit.php.
[8] Gubarev v. Buzzfeed, Inc., 340 F.Supp.3d 1304 (S.D. Fla. 2018)
[9] Christopher Steele, Company Intelligence Report 2016/80, January 2017, typescript, https://regmedia.co.uk/2018/ 02/02/steele-dossier-trump.pdf.
[10] “ICYMI: The FBI’s Dossier Deceit,” U.S. Senate Committee on the Judiciary, last modified July 20, 2020, https://www.judiciary.senate.gov/press/rep/releases/icymi-the-fbis-dossier-deceit.
[11] Ken Besinger, Miriam Elder & Mark Schoofs, “These Reports Allege Trump Has Deep Ties To Russia,” BuzzFeed News, last modified January 10, 2017, https://www.buzzfeednews.com/article/kenbensinger/these-reportsallege-trump-has-deep-ties-to-russia#.lvB5Vd1VN.
[12] David Corn, “A Veteran Spy Has Given the FBI Information Alleging a Russian Operation to Cultivate Donald Trump,” Mother Jones, October 31, 2016, https://www.motherjones.com/politics/2016/10/veteran-spy-gave-fbi-infoalleging-russian-operation-cultivate-donald-trump/.
[13] Gubarev v. Buzzfeed, Inc., 340 F.Supp.3d 1304.
[14] NY Civ Rights L § 74 (2024).
[15] Brief for BuzzFeed, Inc. as Amicus Curiae, Gubarev v. BuzzFeed, Inc., 340 F.Supp.3d 1304 (S.D. Fla. 2018) at 12
[16] Gubarev v. Buzzfeed, Inc., 340 F.Supp.3d 1304 at 13-14.
[17] “Gubarev v. BuzzFeed,” Reporters Committee for the Free Press, accessed November 16, 2025, https://www.rcfp. org/briefs-comments/gubarev-v-buzzfeed.
[18] Gubarev v. BuzzFeed, Inc., 340 F.Supp.3d 1304
[19] Wynn v. Associated Press, 475 P.3d 44 (Nev. 2020)
[20] Bauder, “Banishing a reporter: Trump escalates battle with Wall Street Journal over Epstein Story.”
[21] President Donald J Trump v. Orbis Bus. Intelligence Ltd., [2024] EWHC 173 (KB)
[22] Robin Levinson-King, “Trump gets $15m in ABC News defamation case,” BBC, December 15, 2024. https:// www.bbc.com/news/articles/cgrw57q4y9do.
[23] “Paramount, President Trump reach $16 million settlement over “60 Minutes” lawsuit,” CBS News, July 2, 2025. https://www.cbsnews.com/news/paramount-trump-60-minutes-lawsuit-settlement/.
[24] Bobby Allyn, “Meta agrees to pay Trump $25 million to settle lawsuit over Facebook and Instagram suspensions,” NPR, January 29, 2025, https://www.npr.org/2025/01/29/nx-s1-5279570/meta-trump-settlementfacebook-instagram-suspensions.
[25] Bauder, “Banishing a reporter: Trump escalates battle with Wall Street Journal over Epstein Story.”
[26] J. Edward Moreno, “What Rupert Murdoch Owns, and How He Built His Media Empire,” The New York Times, July 25, 2024, https://www.nytimes.com/2024/07/25/business/rupert-murdoch-empire.html.
[27] New York Times Co. v. Sullivan, 376 U.S. 254.
[28] Herbert v. Lando, 441 U.S. 153 (1979)
[29] Bartnicki v. Vopper, 532 U.S. 514 (2001)
[30] Anush Khardori, “Trump’s WSJ Lawsuit Raises a New Constitutional Question,” Politico, July 22, 2025, https://www.politico.com/news/magazine/2025/07/22/trump-lawsuit-wall-street-journal-supreme-court-ankush-khardoricolumn-00465728.
[31] Safdar & Palazzolo, “Epstein Birthday Letter With Trump’s Signature Revealed.”
[32] Safdar & Palazzolo, “Jeffrey Epstein’s Friends Sent Him Bawdy Letters for a 50th Birthday Album. One Was From Donald Trump.”
[33] Butcher v. University of Massachusetts, 483 Mass. 742 (2019)
[34] Safdar & Palazzolo, “Epstein’s Birthday Letter With Trump’s Signature Revealed.”