22nd November 2025
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Or: why you should have your evidence in place before you threaten a law suit
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Last week President Trump said:
“We’ll sue [the British Broadcasting Corporation] for anywhere between $1bn and $5bn, probably sometime next week.”
That “next week” was this week, and that was the week which was.
There has been no news of any law suit being filed by Trump in Florida or anywhere else. There is not even news of a formal response to the rather good reply which the BBC is reported as having sent.
Perhaps it will be this coming week, or perhaps he has “moved on”.
Who knows.
But there has been a development in the story.
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The Federal Communications Commission (FCC) – the United States counterpart to our Ofcom – has sent the BBC a letter.
You can read the news report here and the FCC has published the letter on their website.
And it is an odd and desperate letter.
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It is odd because, on the face of it, the FCC do not regulate the BBC.
But the FCC make out that they have a concern because the Panorama programme complained of may have been distributed to a US affiliate of the BBC.
You would think that the US media regulator would be able to ascertain whether the programme was broadcast in the US by an affiliate broadcaster. You would think that the FCC would be aware of TV listings and so on.
But no.
The FCC is having to ask a UK broadcaster about what was shown (or not) by the US broadcasters which the FCC regulates.
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And it is desperate because it indicates that Trump and his lawyers do not have any evidence themselves that the programme was broadcast or otherwise distributed in the US.
The sender of the letter, Brendan Carr the head of the FCC, is a close Trump ally – and you may recall his pratfall in seeking to cancel the Jimmy Kimmel show.
There would be no reason for Carr and the FCC to seek to ascertain such evidence if that evidence was already available to Trump and his lawyers.
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When the legal threat to the BBC was published this blog and others pointed out that it contained no evidence whatsoever that the programme was watched in the US. Indeed, a close reading of the letter revealed an attempt to skate over that point.
This failure to provide any evidence meant that the letter was weak, notwithstanding its strident tone and colourful phrasing.
(As a general rule, the more a litigation letter relies on rhetoric, the weaker that letter is.)
A letter such as Trump’s legal threat to the BBC really should not be sent unless the evidence is in place.
But this new FCC letter indicates that there is no such evidence in place, and so there is now a scampering around to get the evidence.
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Perhaps such evidence will come to light.
Perhaps Trump and his lawyers can stand up their claim with this help from the FCC.
Perhaps Trump will sue the BBC.
Perhaps he will be awarded $1bn dollars in damages.
Who knows.
(And I am not an American lawyer.)
But what we can know is what evidence has been placed before us to back up the claims made by Trump and his letters, and there has been no evidence made available of the programme having effect in the US or of any damage having been suffered.
You would have thought Trump would have had attention to this matter.
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In a reasonable world, you would be completely right about the weakness of Trump’s litigation threat.
But in this world, I have no idea how a Florida jury, consisting of Florida Men and Florida Women, deciding on a case presided over by a Florida judge, would handle this.
No need for the “But” at the start of the second paragraph, as I agree – and that is why I said I am not an American lawyer. If you read my post carefully you will see I say “who knows” twice. So: no “But” needed, as that is also my view.
“… I am writing to determine whether any FCC regulations have been implicated by the BBC’s
misleading and deceptive conduct.”
How does one “implicate” a regulation?
It appears to my lay eyes to be a very weak letter. The BBC has already said in its initial response that it did not disseminate the offending splice anywhere that a USA resident, including Trump, could see it legally. “Asked and answered” – as heard/seen on many a USA courtroom drama.
I s’pose the Beeb has to answer, but a short one-liner – “please refer to our response dated …” would suffice, I should think.
Dear Mr BBC,
As you know, you were recently caught intentionally distorting a speech that my good, good friend President Trump gave in January of 2021. He is suing you for $5 billion, as he has suffered overwhelming financial and reputational harm. Tempting as it is to share with you a litany of unrelated anecdotes suggesting that my client, sorry, good, good friend, sorry, boss, these would be irrelevant in court, as the only thing that counts is evidence. Unfortunately we have none. He hasn’t been overwhelmed financially, and frankly, his reputation hasn’t changed either. Could you help me out? Got anything?
I really need to keep my job, and your prompt response will help aid me in that effort.
Thank you,
Brendan Carr
So Trump has’nt seen the programme himself, otherwise he might remember where in US it was broadcast. But how did the programme then get his attention? Also suspicious the claim comes so late after its broadcast and at a time of other critisims of BBC. Is someone in the U.K. with links to Trump involved?
Due respect 🙂
I doubt any FCC have any claim to complain.
Auntie Beeb have apologised for the “edited connection”
Most people of sensible age & sensible sense knows this is futile.
Ergo: Trump is “diverting”
PS: previous post – DAG says it all in his reply 🙂
Thank you for the commentary.
Are there any legal reasons why the BBC would need to pursue the requests contained in the letter, or even make a substantial reply?
Insert the sound of a very sad trombone here…
First the FCC acknowledge that Trump did give the speech and then assert that he didn’t utter the ‘materially false’ sentence. I think it will be round that he did. What a cobbled together letter.
Your commentary most helpful, as always. I do note that the FCC says “whether the BBC provided”, rather than was ‘broadcast’ in the U.S ., which I find interesting and possibly significant.
Please keep up your excellent and insightful analyses and commentaries.
I think we need to correct the record here. Others commentating on this post seem to have done so with the understanding that Brendan Carr’s letter to the BBC was only to the BBC and was asking the BBC to provide any evidence it had relating to provision of the Panorama program to US partners.
That is not the case.
If you look at the letter in full, on the FCC web site, you can see that it is addressed not just to the BBC, but also to the CEO of NPR (National Public Radio) and the CEO of PBS (Public Broadcasting Service). So in effect the FCC letter is an attempt to establish whether or not the BBC provided copies of the Panorama episode to it’s partners in order to ask follow-up questions of those entities to determine whether or not it was broadcast.
I think the nature of this letter shifts accountability in a significant way – and potentially in a way that is fatal to President Trump’s case.
It is undisputed that the Panorama program in question was created and supplied to the BBC by a third party production company. Nevertheless, President Trump threatened to sue the BBC on the grounds that it published the material in to the United States [in other words, the act in which President Trump believes he was wrong was performed by the BBC]. However, if Carr’s letter is facially correct and if this is an attempt to establish whether the BBC provided materially misleading content to US broadcasters, then the same principle that resulted in the exclusion of the original production company from President Trump’s complaint [other than, of course, the fact that some random production company are unlikely to have billion-dollar-deep pockets to raid] applies to the BBC in the event that it is determined that either NPR or PBS received and subsequently broadcast the program.
In short – if the broadcast route is via either NPR or PBS, then the President’s complaint is with those entities – organisations that *are* regulated by the FCC and which therefore *may* have a case to answer. But the same mechanism that excluded the original production company from the President’s complaint against the BBC surely apply if NPR and PBS are involved.
That is not the “end of the matter”, however, since from prior coverage we are aware that the Panorama program was also available via iPlayer – an internet-based media streaming mechanism. Here, however, I think a different set of concerns apply. By definition, iPlayer is a “user-driven mechanism” – it does not randomly or spontaneously select a US-based network address and start sending streams of television programs to that location. Instead, an actual person, located within the United States, would have to activate a device that incorporated the capability to stream iPlayer content, locate the Panorama program in question, then start to watch it. Because the BBC does not “censor” or “filter” content for the US market, it effectively has no control over what US citizens want to watch. If you think about this from the perspective of “where is the verb?” on the basis that the verb – the action – is the wrong-doing, then in this case the action would be initiated by a US citizen on US soil. A UK corporation could hardly be expected to be legally responsible for the actions of that citizen.
Or to put this another way… Consider a scenario where the State of Florida bans a book [as they have done recently] and that the book in question was written by a UK author and published by a UK publishing house. Now consider that a US citizen flies to the UK on vacation, buys a copy of the book and then takes it home. Later, the book is left in a public place and another person sees materially false statements about President Trump. In this parallel scenario, the equivalent response for the President to take would be to threaten the UK publisher with printing a book he didn’t like… This would be completely illogical. Not only did the publisher not write the book and not transport a physical copy to the US, but there would have to be showing of animus.
Finally, a thought on the uncontested editing of the President’s speech from the Ellipse, as broadcast. I note that one of the comments raised during internal BBC discussions was to point out that this was a shortening of the speech, to edit together highlights. Whilst it might be on the ragged edge of arguments, I think this has merit if we consider the alternative. If the program’s creator had taken words from the President’s speech and altered their sequence, moving them around to give the impression that he said something he did not say, that would be a blatant misrepresentation.
But given this program included a video clip [not audio only] and given that the cuts in the record as it jumps between the two portions of the speech, anybody watching it would be given ample visual clue that an edit had taken place. It would be hard, I think, to show that this was done with animus.
Finally, though it is clearly academic at this point, I note that at the time of the broadcast, President Trump was not the President, but a regular US citizen. His use of the FCC to pursue this matter, therefore, might sit right on the edge of using the Power of the Office of the President for personal gain, which is forbidden by the Emoluments Clause of the US Constitution. Though I concede that, at present, the Constitution seems to be viewed more as “guidelines” than anything else.
“I think we need to correct the record here.”
A bad way to start a comment, and it almost meant it was not published. The original post is careful to link to the original letter and invites the reader to read the letter in full. And as such the record does not need “correcting”. Be careful with comments like that as it may mean the rest of what you type does not get to see the light of publication.
It’s not merely the case that a person in Florida would have to select the programme on iPlayer. The BBC asks would-be users to confirm that they have a UK television licence, and iPlayer has specific checks that prevent programmes being watched or downloaded outside the UK. It’s true that it is possible to circumvent the geographical check, but only by taking the very deliberate step of setting up a VPN with an endpoint in the UK.
The more I read about this, the more convinced I am that this was simply another attempt to distract people from the Epstein story. It didn’t seem to get much traction in the US media, however, which is why it might die a slow, quiet death.
Thank you for this post – very much enjoyed reading it.
My understanding is that the US law is based on the principles of free speech established under the 1st Amendment to the US constitution. And generally it is far more protected than general principles of defamation under the UK Defamation Law.
I think under the US Constitution, the President would need to prove ‘falsity’ and show malice by clear and convincing evidence. It is also likely that the whole programme would need to be reviewed and not just the error in editing as basis for judgement. The US code also provides for discovery which is likely to be uncomfortable for both parties. And then in order to get damages he would need to show harm, even if the case first establishes jurisdiction.
In normal circumstances, it appears that the bar is set high for the case to prevail. But as David Allen Green has stated, these are not normal circumstances.
In these times some of the managerial class don’t think that they have to put any effort in to win bigly (Sic) rewards. Mr Trump and the FCC chair appear to fall into this section of society.
Like a tree falling in the forest if one didn’t hear it did it happen?
I have just read to the end of Mr Carr’s letter. It states, without a hint of irony:
‘After all, the FCC has stated that “rigging or slanting the news is a most heinous act against the public interest.”’
Deary, deary me.
Trump has already succeeded here.
The BBC has just retroactively edited the recent Reith Lecture given by Rutger Bregman, to remove the phrase “the most openly corrupt president in American history” when talking of Trump.
Recording here: https://www.bbc.co.uk/programmes/m002mmrv
The Guardian’s piece: https://www.theguardian.com/media/2025/nov/25/rutger-bregman-accuses-bbc-of-censoring-his-reith-lecture-on-trump
That example is not him “succeeding” with this letter. This is the sort of thing that he would have pressed for anyway, and would have happened anyway, regardless of the letter.
Sorry. By “here” I meant the whole case.
I don’t think the BBC would have censored Bregman had Trump not complained in the first place.
I am not a lawyer but I suspect it would be quite difficult to prove to a court that none of the forty-something prior presidents were as corrupt as the present one.
Such an evaluative comparison would be a matter of opinion.
I don’t think it’s directly relevant whether the statement is true. Bregman even qualifies it as “openly corrupt”, and who knows what that means?
The point is that this is Bregman’s opinion, and it was censored.