It's always something.
In my last update on the Donald Trump/Stormy Daniels/Michael Cohen saga, I described the hearing at which Michael Cohen asked United States District Court Judge James Otero to stay — that is, freeze — Stormy Daniels' lawsuit in federal court in Los Angeles, in which she seeks a declaration that her $130,000 hush-money deal with the President of the United States is invalid, and in which she sues Michael Cohen for defamation. Michael Cohen filed the declaration Judge Otero demanded, committing to taking the Fifth in the Los Angeles case. Judge Otero then granted Cohen's motion in a thoughtful and thorough order. So, for those keeping score at home: there's an ongoing federal criminal investigation of the Stormy Daniels hush money deal in New York, and there's Stormy Daniels' lawsuit in Los Angeles, which is temporarily stayed.
That was too calm. Now Stormy Daniels, through her not-exactly-media-shy attorney Michael Avenatti, has sued Donald Trump for defamation in federal court in the Southern District of New York — the same court where United States District Judge Kimba Wood is sorting out the disputes relating to the search of Michael Cohen's office. (As of this writing the case isn't assigned to a judge yet; it's possible that it would get transferred to Judge Wood as related to the matter before her.)
In the lawsuit, Ms. Daniels repeats her now-familiar account of a relationship with Trump. She says that in May 2011, when she was contemplating telling her story to In Touch, a man threatened her in a Las Vegas parking lot, telling her to forget the story. She recently released a sketch of her impression of the man who threatened her. The President of the United States, ever temperate and thoughtful of his lawyers' blood pressure, tweeted about the sketch:
In case you can't see the image, he said "A sketch job years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!
(All quotations of the President of the United States are [sic])
Ms. Daniels claims that President Trump has accused her of fabricating the threat incident, and has therefore defamed her:
Mr. Trump's statement falsely attacks the veracity of Ms. Clifford's account of the threatening incident that took place in 2011. It also operates to accuse Ms. Clifford of committing a crime under New York law, as well as the law of numerous other states, in that it effectively states that Ms. Clifford falsely accused an individual of committing a crime against her when no such crime occurred. Mr. Trump's statement is false and defamatory. In making the statement, Mr. Trump used his national and international audience ofmillions ofpeople to make a false factual statement to denigrate and attack Ms. Clifford.
This is a weak claim, though perhaps (particularly in New York) not weak enough for the President to get it dismissed early.
Let's start with the basics. Only provable statements of fact can be defamatory. Insults, hyperbole, overheated rhetoric, pure opinion, and other things not reasonably interpreted as a statement of fact cannot be defamatory. One of the earliest questions in this case — and likely the one the President's lawyers will attack when they file a motion to dismiss the defamation suit — is whether Donald Trump's tweet can be taken as a provable statement of fact, as opposed to mere bluster, hyperbole, insult, and rhetoric.
This is not at all an idle question; the President has already won a case on this basis. In 2016, political strategist Cheryl Jacobus filed a similar defamation claim against Trump, asserting that Trump defamed her when he claimed in a tweet that she begged for a job and was rebuffed:
Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility.
In that case, a New York court dismissed the lawsuit against President Trump, finding that the tweet could not be taken as a statement of provable fact, but was hyperbole and political opinion. There are several important factors in this decision. First, the New York court noted that under New York law, whether a statement is fact or opinion is a question of law for the court — meaning that it can be resolved by the court on a motion to dismiss. Second, the New York court emphasized how important the context of the statement is in determining whether it is fact or opinion. When the statement in question is a Trump tweet, the context is a dumpster fire. Here's what that court said:
Moreover, the immediate context of defendants' statements is the familiar back and forth between a political commentator and the subject of her criticism, and the larger context is the Republican presidential primary and Trump's regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable. (See eg Jasmine C. Lee & Kevin Quealy, The 289 People Places and Things Donald Trump Has Insulted on Twitter: A Complete List, The Upshot, NY Times [digital ed], Dec. 6, 2016,http://www.nytimes.com/interactive/2016/01/28/upshot/donald-trump-twitter-insults.html [accessed Jan. 8, 2017]). His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as "loser" or "total loser" or "totally biased loser," "dummy" or "dope" or "dumb," "zero/no credibility," "crazy" or "wacko," and "disaster," all deflecting serious consideration. (Id.; see Technovate LLCv Fanelli, 49 Misc 3d 1201[A], 2015 NY Slip Op 51349[U], *4 [Civ Ct, Richmond County 2015] ["On-line speech often is characterized by the use of slang, grammatical mistakes, spelling errors, and a general lack of coherence."]; Ellyn M. Angelotti, Twibel Law: What Defamation and Its Remedies Look Like in the Age of Twitter, 13 J High Tech L 430, 433 [2013] ["The informal nature of conversation on Twitter tends to encourage people to talk more freely about others, including the spreading of rumors and potential falsehoods."]).
Based on that, the New York court dismissed Jacobus' suit against Trump.
Stormy Daniels' suit against Trump will face a similar challenge. The federal court will be applying the Federal Rules of Civil Procedure for procedural matters, but applying New York's substantive law of defamation. Here's a footnote if you want to know why, because it's dull.1 Trump's lawyers will almost certainly file a motion to dismiss the case. The question before the federal judge will be whether, if all facts (as opposed to conclusions) in the complaint are taken as true, the complaint shows defamation under New York law. The President's lawyers will have a strong argument, boosted by the Jacobus case, that it does not, because his tweet can't be taken as a factual allegation. The context is (a) this President and (b) Twitter. Twitter in general, and this President on Twitter in particular, are widely understood by anyone familiar with the context to be full of bombast and truculent rhetoric, not reliable fact. This impression is enhanced by the figurative language ("con job") in the tweet and the way it was combined with an overtly partisan and opinion-based swipe at the news media. In short, the President's lawyers have a very credible chance of getting this thrown out on the basis that Trump's tweet can only be taken as trash talk, not as a literal provable statement that Daniels is lying.
Yes, that would make two courts that have found as a matter of law that the statements of the President of the United States cannot be taken factually or literally, but should be understood as bluster.
That's not the only problem with the case, but it's the biggest one and the one most likely to help the President at the motion to dismiss stage. I also note that there are issues with the allegations about President Trump's knowledge. Because Stormy Daniels is a public figure, to prove defamation she has to show that a false statement about her was made with "actual malice" — which in defamation context means with knowledge that it was false or reckless disregard about its falsity. She hedges her bets on that:
Given the circumstances surrounding the threatening incident in 20II, namely that Ms. Clifford had not at the time gone public with her story and very few people kmew of the possible In Touch story, it is reasonable to infer that the person who threatened Ms. Clifford could have only been acting directly or indirectly on behalf of Mr. Trump and/or Mr. Cohen. Thus, Mr. Trump may have actual knowledge of the incident and ofthe falsity of his statement.
Alternately, if Mr. Trump in fact had no direct or indirect connection to the incident, then Mr. Trump necessarily acted in reckless disregard of the truth or falsity of his statement because he would have no way of knowing one way or the other as to whether the incident occurred. Nevertheless, and in spite of this, he chose to defame and disparage Ms. Clifford to his audience of over 50 million Twitter followers and many more worldwide.
If President Trump knew the statement was false, that's actual malice. But the second paragraph doesn't describe actual malice. Actual malice requires reckless disregard of the truth, which means more than just extreme carelessness. Most courts — including New York courts — say that it requires that the defendant had serious doubts about the truth of the statement but made it anyway. It would be difficult, to put it mildly, to prove that President Trump entertains serious doubts about the things he says or tweets, or is capable of such doubt. Stormy Daniels' allegation of reckless disregard is insufficient as a matter of law.
New York doesn't have an anti-SLAPP statute — a statute providing a procedural vehicle to get rid of a bogus defamation case and recover attorneys fees, which is more powerful and flexible than a motion to dismiss. But here's the trick, and I don't know if Stormy Daniels' lawyers know it. Stormy Daniels is from Texas. Texas has a strong anti-SLAPP statute. And some federal courts will apply the anti-SLAPP statute of your state of origin if you file a defamation claim in federal court elsewhere. My friend and First Amendment badass colleague Marc Randazza pointed this out to me — in fact, Marc says, federal courts in the Second Circuit (which includes the court where Daniels filed this case) have applied anti-SLAPP laws from the home states of plaintiffs to cases there. That would give President Trump's lawyers a powerful tool, even more powerful than a motion to dismiss, to get rid of the case — and even to recover attorney fees.
This is not a strong defamation case; it's a very weak one, substantively and procedurally. Michael Avenatti isn't dumb, and it's possible his real strategy is less the ultimate success of the case but the additional vector of pressure it puts on Team Trump — it's one more place to drag Trump into court, one more place where she could conceivably seek discovery from Trump and Michael Cohen (who would presumably have to take the Fifth), one more move on the board.
As a federal criminal law and First Amendment practitioner, this is an amazing time to be alive.
Edited to add: In the comments, Peter Hurley makes an excellent point that I missed:
It also seems that there could be an argument that Trump is engaging in commentary based on disclosed facts in respect to the quote tweet.
Inasmuch as the quoted tweet purports to show evidence (via comparing the sketch to Clifford's husband) that the claims are fabricated, I think there is a case that Trump's statement is based on disclosed facts, and therefore should be treated as not-possibly-defamatory pure opinion, unless Clifford can prove he knew it to be false.
That's exactly right. An opinion based on disclosed facts — "based on what I read in this article, I think X" — is not a provably false statement of fact and isn't defamation. Peter's reading — that Trump is saying that the threat story is a con job based on the fact shown in the tweet he is linking that the sketch of the suspect looks like Daniels' ex — would be an opinion based on disclosed facts, and absolutely protected by the First Amendment.
What does my friend First Amendment maven Marc Randazza think of the complaint? Um . . . .
- The suit is filed based on the federal court's diversity jurisdiction, which applies when the plaintiff and defendant are from different states. That's one way to get to federal court. In a diversity action, the state's substantive law (here, the law of defamation) applies. That's oversimplified. I could tell you more until you bled out the ears. ▲
Last 5 posts by Ken White
- Now Posting At Substack - August 27th, 2020
- The Fourth of July [rerun] - July 4th, 2020
- All The President's Lawyers: No Bill Thrill? - September 19th, 2019
- Over At Crime Story, A Post About the College Bribery Scandal - September 13th, 2019
- All The President's Lawyers: - September 11th, 2019


Ken, you're the lawyer and I'm not, and I wouldn't dream of questioning your knowledge of the law in theory or as it's likely to be evaluated by a court. This is more of a question of… how things work.
I understand the words you're saying, here – the President's Twitter account is established to be "bluster and hyperbole" and therefore the shit he says in it cannot be considered defamation – but isn't that, well, problematic? Regardless of whether a "sufficiently reasonable person" knows to doubt every word coming out of President Trump's mouth or social media accounts ever, he's the sitting President of the United States, and disturbingly close to half the country does believe anything he says on that Twitter account that they happen to like the general idea of.
Isn't that real and tangible damage, then, if he uses that account to accuse someone of having committed tangible crimes?
If defamation isn't a recourse, is there any legal recourse to being attacked with hyperbolic and false vitriol from someone wielding that kind of power?
A President who cannot defame because his public persona is a dumpster fire is likely a President who cannot be defamed because his public persona is a dumpster fire. Watch those fictional $1M/incident "liquidated damages" in the purported agreement evaporate…
Look around, look around, at how lucky we are to be alive right now.
Isn't the President immune from having to appear in court until he's out of office?
To follow up on Jim Salter's question, hasn't the White House said that Trump's tweets are official statements? Is that likely to make a difference in the outcome of this case?
@jdgalt
No, it's only a qualified immunity. That being said you're not going to get large amounts of a sitting President's time, and you're going to have a hell of a time getting any at all…
"The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery."
@jdgalt: No. See Clinton, Wm. J. for evidence of this.
He's arguably immune from prosecution but not from having to appear in court.
Yeah, I've wondered for a while how we're supposed to square the legal standard for what a reasonable person will believe with the growing body of empirical evidence that this definition of "reasonable" is extremely optimistic, bordering on delusional.
It also seems that there could be an argument that Trump is engaging in commentary based on disclosed facts in respect to the quote tweet.
Inasmuch as the quoted tweet purports to show evidence (via comparing the sketch to Clifford's husband) that the claims are fabricated, I think there is a case that Trump's statement is based on disclosed facts, and therefore should be treated as not-possibly-defamatory pure opinion, unless Clifford can prove he knew it to be false.
@jdgalt- the president is immune from criminal prosecution while in office, but from not pre-existing civil claims nor from testifying as a witness. Bill Clinton had to testify in Paula Jones's civil harassment case
Thanks Ken! I saw the lawsuit and hoped you'd break it down for us non-lawyers. You never disappoint!
Is this a valid courtroom tactic? I don't mean on constitutional grounds. What I mean is, is there some kind of tactical advantage doing this, even if they will likely lose, because it allows them access to information /allows them to release information because this is a civil case and therefore not as restricted as a criminal case?
I genuinely have no idea, just wondered if this could be a "law dumb, process smart" kind of tactic.
Do Roy Moore's next:
http://www.al.com/news/huntsville/index.ssf/2018/04/roy_moore_to_discuss_allegatio.html
Who knew "outrage" was something you could sue for?
At some point, team trump playing both ways on Twitter will have to be dealt with. The courts sent a strong message when they barred his executive order to change the air travel requirements for people from specific countries, and did it based on the content of his tweets (and campaign blather).
Pragmatically, do we want this president to feel legal restraint in his Twitter ramblings? I think: hell no. It's the only way we ever know what he's thinking, with this particular administration.
1st AM things: the pressure here is akin to the heckler's veto… i guess you could call it the heckler's whip (or, in this case, bazooka). we want people to be able to state their opinion without legal restraint, and particularly politicians. at the same time, a sitting president stating a false opinion can have very real damaging effect. it could encourage 3rd parties to do damage that… normal people's opinions wouldn't cause. the protection is if the politicians get called out for stating a false opinion… but that mechanism is currently broken. either the press doesn't address the issue properly, or people just ignore more accurate information.
do you throw out a bunch of 1st amendment protections because the current president is a vindictive tweeting asshole? probably not a good idea. but… maybe there's room to hold a president accountable for tweet damage when he's used twitter for both head of state messages and false damaging vitriol? still, as noted above, i think the last thing we want to do is provide an incentive for this president to rein in his twatting. impeachment and removal based on tweet content would be a fairly narrow ruling, no?
I came to this website immediately after skimming Stormy's complaint. I was not disappointed!
I've been tempted before, in legal pleadings, to write a peg for a footnote like the sentence Ken used for footnote 1, but I've never had the nerve. Here it gave me a genuine belly-laugh, as did Ken's mercy in condensing the contents of the actual footnote, because he's right about it being fiendishly complex.
But actually, footnote 1 circles back around to the very strong — and surprising! and consequential! — ending to this post, about the Texas Citizens Participation Act, aka the Texas Anti-SLAPP statute, Tex. Civ. Prac. & Rem. Code Ann. ch. 27, which I've advised clients about and litigated in the Texas courts. Some of what Ken mercifully left out of footnote 1 is a distinction between states' "substantive law," which binds the federal courts in diversity cases (once you figure out which particular state's law applies as an essential predicate step), on the one hand, and "procedural law," which governs timetables and procedures for civil litigation, on the other hand.
Texas is a thoroughly tort-reformed state whose legislature and appellate courts are reflexively hostile to defamation plaintiffs. This statute reflects that. But a lot of the particular ways in which it "adjusts" the defamation playing field are procedural. The procedural tweaks can nevertheless have devastating and sometimes outcome determinative effects on a defamation plaintiff's intended strategy and tactics.
To pick the most conspicuous example: Section 27.003(b) obliges a defendant who's invoking the statute to file his motion to dismiss — asserting that the defamation lawsuit against him is a disguised effort to suppress the defendant's free speech rights — within 60 days after service. Once he timely does that, then section 27.003(c) provides that "on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss."
BOOM! The defamation plaintiff is stopped dead in his tracks, without any need for a court ruling or hearing or anything. Section 27.003(d) provides that "on a showing of good cause, the court may allow specified and limited discovery relevant to the motion," but this is nevertheless an incredibly powerful procedural advantage.
So can Trump indeed use section 27.003(c) of the Texas anti-SLAPP statute in federal court in New York against Texas resident Stormy? Likewise, if Trump's motion is denied in the trial court, can Trump backstrap an immediately interlocutory appeal-as-of-right to the Second Circuit based on section 27.008 of the Texas statute? I haven't read any of the precedents that Marc Randazza has mentioned to Ken, so I don't know the answer to those questions. But I'm intrigued!
Can a practitioner be a time, or vice versa? Such dangling modifiers grate on me as a grammar snob. Changing As to For would cure it.
Ken, I've forgotten: didn't you discuss the defamatory status of opinions based on disclosed false facts recently? Was that in a comment?
Like as I understand it right, if someone says "Ken White is a lawyer, therefore he is a coward and a pony's toadie" that's a denigrating opinion based on disclosed facts so it's not defamatory. But if someone says "Ken White rushed the stage at halftime during Super Bowl XLV and proclaimed himself a worshipper of Poseidon on national tv, therefore he is a coward and a ponie's toadie" that's a denigratory opinion based on a disclosed but provably false fact… so is it defamatory?
Are you a troll or a bot? You've asked this question like 5 times now in various threads. Either you don't come back and read any responses or you're just trolling or both. The Newt-Gingrich era Republican party funded the very case that determined this in their funding Paula Jones lawsuit against Bill Clinton.
The finding in that case is that the president is not immune to civil suits that predate their time in office. Trump can and will be sued for stuff he did before he became president just like Clinton was. And just like Clinton he's probably going to have to sit for a deposition under oath, just like Clinton.
Stormy's complaint is signed by a lawyer from Greenwich, CT, Catherine Keenan, with Avenatti listed as additional counsel subject to his pending motion for admission to the SDNY pro hac vice. Ms. Keenan was already admitted in SDNY and appears to be a member of the NY bar, but it's nevertheless unusual to have CT and CA lawyers bringing a lawsuit in SDNY based on NY defamation law. The venue allegation is only that SDNY is a district in which Trump maintains a residence; the complaint contains no allegations about where Trump was when he made the allegedly defamatory tweets, nor any other facts that would typically be looked to in the "choice of law" determination to decide which state's substantive law applies. And the complaint makes no affirmative allegation that New York law should apply.
Does anyone know offhand if the NDA had choice of law and/or forum selection terms that might arguably apply?
I have a comment in moderation. I'm not sure what triggered that — perhaps an anti-spam filter reacting to my link to Stormy's complaint or her lawyer's website?
Should she not also sue Tom Brady for assault with intent to deprive civil first amendment rights to link the NFL and Trump–via the USFL of course–into a RICO Suit?
What?
Ah — I see (but won't link here) the "About" webpage for this blog warns:
So, reprinting, with only one link, from my two prior comments still in moderation (having more than one link each):
————–
I came to this website immediately after skimming Stormy's complaint. I was not disappointed!
I've been tempted before, in legal pleadings, to write a peg for a footnote like the sentence Ken used for footnote 1, but I've never had the nerve. Here it gave me a genuine belly-laugh, as did Ken's mercy in condensing the contents of the actual footnote, because he's right about it being fiendishly complex.
But actually, footnote 1 circles back around to the very strong — and surprising! and consequential! — ending to this post, about the Texas Citizens Participation Act, aka the Texas Anti-SLAPP statute, Tex. Civ. Prac. & Rem. Code Ann. ch. 27, which I've advised clients about and litigated in the Texas courts. Some of what Ken mercifully left out of footnote 1 is a distinction between states' "substantive law," which binds the federal courts in diversity cases (once you figure out which particular state's law applies as an essential predicate step), on the one hand, and "procedural law," which governs timetables and procedures for civil litigation, on the other hand.
Texas is a thoroughly tort-reformed state whose legislature and appellate courts are reflexively hostile to defamation plaintiffs. This statute reflects that. But a lot of the particular ways in which it "adjusts" the defamation playing field are procedural. The procedural tweaks can nevertheless have devastating and sometimes outcome determinative effects on a defamation plaintiff's intended strategy and tactics.
To pick the most conspicuous example: Section 27.003(b) obliges a defendant who's invoking the statute to file his motion to dismiss — asserting that the defamation lawsuit against him is a disguised effort to suppress the defendant's free speech rights — within 60 days after service. Once he timely does that, then section 27.003(c) provides that "on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss."
BOOM! The defamation plaintiff is stopped dead in his tracks, without any need for a court ruling or hearing or anything. Section 27.003(d) provides that "on a showing of good cause, the court may allow specified and limited discovery relevant to the motion," but this is nevertheless an incredibly powerful procedural advantage.
So can Trump indeed use section 27.003(c) of the Texas anti-SLAPP statute in federal court in New York against Texas resident Stormy? Likewise, if Trump's motion is denied in the trial court, can Trump backstrap an immediately interlocutory appeal-as-of-right to the Second Circuit based on section 27.008 of the Texas statute? I haven't read any of the precedents that Marc Randazza has mentioned to Ken, so I don't know the answer to those questions. But I'm intrigued!
****
Stormy's complaint is signed by a lawyer from Greenwich, CT, Catherine Keenan, with Avenatti listed as additional counsel subject to his pending motion for admission to the SDNY pro hac vice. Ms. Keenan was already admitted in SDNY and appears to be a member of the NY bar, but it's nevertheless unusual to have CT and CA lawyers bringing a lawsuit in SDNY based on NY defamation law. The venue allegation is only that SDNY is a district in which Trump maintains a residence; the complaint contains no allegations about where Trump was when he made the allegedly defamatory tweets, nor any other facts that would typically be looked to in the "choice of law" determination to decide which state's substantive law applies. And the complaint makes no affirmative allegation that New York law should apply.
Does anyone know offhand if the NDA had choice of law and/or forum selection terms that might arguably apply?
Haha… Randazza, charming as ever.
Ken, thanks for the update with Randazza's tweet and its cites, which I'm in the process of trying to sort out. The choice of law discussion by the SDNY district judge in Adelson v. Harris (which it looks, at a glance, like the Second Circuit accepted in at least a couple of subsequent appeals) appears to me to support Randazza's suggestion that the Texas anti-SLAPP statute might apply at least as to its attorney-fee-shifting provision. I'm not yet convinced that the other provisions of the Texas statute — like the automatic discovery stay upon filing of the motion to dismiss, or the interlocutory appeal as of right — would likewise bind a federal court sitting in New York.
Using the analysis from that Adelson case (which applied New York State choice-of-law provisions to conclude that Nevada law, including its anti-SLAPP statute, governed that case because Adelson resided in Nevada):
Even if Stormy's residence doesn't make Texas the state with the most significant relationship to the alleged tort, then surely Trump's residence in Washington, D.C. — from which he issued the allegedly defamatory tweet — will give Trump's lawyers the possibility of arguing (in the alternative, perhaps) that the District of Columbia's anti-SLAPP statute applies. Other than Trump having previously been a resident of New York, it's hard to see how it can be argued that New York has the most significant relationship — meaning that if Avenatti picked New York in an attempt to avoid any anti-SLAPP risks, he's likely to be disappointed in that.
I don't know enough about either the substantive defamation law of either New York or the District of Columbia to compare their law to Texas', but I would be very, very surprised if either were as pro-defendant as Texas law, to the (confusing but considerable) extent that state law on issues like "fact vs. opinion" is still important. In other words, it's obvious to me why Avenatti didn't choose to sue in Texas — even before consideration of the prospective jury pools.
Kettle Logic! I love it! I hardly ever see kettle logic in the wild.
To summarize the quoted passage from the complaint: "If the incident happened, Trump definitely knew about it. And if it didn't happen, how could he know it didn't?"
The first claim undermines the second. If it's true that "If it happened, Trump knew," then presumably Trump (or someone working for him who understands elementary logic) can contrapose that into "If Trump doesn't know about it, it didn't happen." Which should be sufficient evidence of his claim to protect against actual malice.
I hope Trump goes down and goes down hard, but I think it'll take a better argument than that one.
I really don't see how "Begged my people for a job. Turned her down twice" can be anything other than a provable statement of fact. Mind-boggling.
Beldar says April 30, 2018 at 3:51 pm:
That is very much like CA's anti-SLAPP statute, Code of Civil Procedure section 425.16 et seq.. it's almost identical.
You would think that a CA attorney would recognize the potential for disastrous consequences if the TX anti-SLAPP statute comes into play. I can only conjecture that he assessed the likelihood of that event as miniscule. Whether that was wishful and sloppy thinking or not, I can't say.
But based on Marc Randazza's analysis conveyed by Ken above, I would not be surprised if those attorneys wound up in a situation similar to that of J. Bruce Ismay, Chairman of the White Star Line, and passenger on the Titanic — pressure the captain to go faster in order to set a record; escape in a lifeboat ahead of women and children (the client who will be liable for attorney fees if an anti-SLAPP motion prevails), then shed tears about the tragedy.
It's not a perfect analogy, but it makes the point.
I agree. Just because Trump tends to be a flippant asshole on twitter shouldn't render absolutely everything he says unactionable opinion. Also, I don't know if that decision has been appealed.
The Stormy Daniels claim does look pretty obviously meritless. But I am at a loss to understand the Jacobus ruling. Did the court hold that "she begged me for a job and I turned her down twice" isn't a testable statement of fact? Or did it hold that the president (at least when on Twitter) is such a known liar that nothing he says there, no matter how clear-cut, could ever be defamatory — not even "Last Tuesday at noon I personally saw Popehat rob a lunch truck" ?
I understand that Clinton v. Jones is relevant to the question of whether a sitting president can be sued in civil court for acts alleged to have been committed prior to taking office. (Answer: yes.) But is Clinton v. Jones still relevant when discussing acts alleged to have been committed while in office, too, as is the situation here?
I was under the impression that this was a question without a definitive answer. Indeed, I believe Trump's lawyers in an earlier defamation suit this year posed that very question to the court in the hopes of getting a clear, "No!"
Can anyone much better versed in law than I am chime in on this one? Thanks in advance.
I have two problems with this one:
a) if you're going to quote them as [sic], Mr. White, then you had darn well better get them right. The tweet said, "A sketch years later" and you wrote "A sketch job years later". You then wrote "(All quotations of the President of the United States are [sic])".
b) At what point does random shouting become, or not become, actionable? Imagine a series of tweets:
b1) Person A looks like a donkey!
b2) Person B acts like a donkey!
b3) Person C is dumber than a donkey!
b4) Person D is the son of a donkey!
b5) Person E had sex with his mother!
b6) Person F had sex with a donkey!
How much random garbage do you have to throw around before 'it is reasonable' that 'nobody reasonable' would take you seriously? If I insult everyone about everything, does that mean I can get away with all kinds of otherwise actionable defamation 'because nobody takes me seriously'? Eerrmmm… J.
And all the SLAPP stuff only applies if the remark is not found defamatory. If I were accused by the President of the USA in a highly public forum of lying about a threat made against my life and/or livelihood, I'd find that pretty defamatory.
Then again, I'm not a public figure (or am I, for posting on website comments?)
J.
Of course all of the Stormy Daniels story is about her attention seeking. The longer this goes on the higher her profile and the more she can get for personal appearances, her book deal and of course the starting role in her porn masterpiece playing herself.
She has a history so such antics, look at her run for the Senate in Louisiana. Although a native of the state she was running in she wasn't a current resident. At that time she lived in Florida.
The fact that she makes a pretty good impression in person, coming off as a reasonable intelligent woman makes her perfect for the media show.
Honestly the anti-SLAPP stuff strikes me as a little disgusting here. A billionaire president defending his right to bully individual citizens is a complete inversion of the purpose of such a law.
It's not just you.
Granted, the law is the law and it applies as stated… but if it gets used successfully this way, I wonder if this is our clarion call that anti-SLAPP measures need a bit of fine tuning.
What immediately jumped out was that you quoted a case where the context was described like this:
And then when considering the context of this case, you only find (a) twitter and (b) the President. Odd, that. Notice above, the context includes both sides of what is going on; you only see Trump, and consider that to be the whole context. That's really really weak sauce when your whole argument is that somebody else's sauce is weak. A political commentator talking about the President, and the President's response, might actually be a different context than public statements about an alleged crime, or public statements about an ongoing legal matter.
It really undermines the rest of the discussion, because the context is critical to any conclusions, and the context wasn't considered in a serious apples/apples way.
Two things:
1. There is a concept in defamation law known as the "libel-proof plaintiff," someone whose reputation is so bad that virtually nothing you can say about him would lower the public's opinion of him. After Jacobus and, possibly, Daniels, will there be such a thing as a "libel-proof defendant"?
2. Following up on Steve's question above, how do you parse out the difference between a person who makes a statement when he is sloppy about whether it is true; when he knows he has no f****g idea whether what he is saying is true; and when he has conscious doubts about whether what he is saying is true?
It seems like an unfortunate failing of the law that the fact that trump is a mendacious vulgarian of the highest order somehow grants him the immunity to defame and slander people at will with no fear of legal consequence.
Ken:
Your DPRK news service twitter handle made it to Charlie Pierce's column:
https://www.esquire.com/news-politics/politics/a20124568/pop-quiz-which-supreme-leaders-medical-report-is-a-joke/
@Steve: As I understand it, an opinion based on disclosed facts cannot be defamatory, whether the disclosed facts are true or false.
So "Ken White rushed the stage at halftime during Super Bowl XLV and proclaimed himself a worshipper of Poseidon on national tv, therefore he is a coward and a ponie's toadie" is defamatory if, and only if, "Ken White rushed the stage at halftime during Super Bowl XLV and proclaimed himself a worshipper of Poseidon on national tv" is.
The rest is opinion based on disclosed facts, and so cannot be defamatory.
Now that Trump has referred to her as an "extortionist" in a tweet, died that change anything?
@KeithB:
IIRC, that one is Patrick's, not Ken's.
@CJColucci
IMO Trump is a bullshitter as opposed to a liar. He doesn't appear to care what's true and false, he simply says what's most expedient that particular moment. The cover-ups appear to be Trump & etc ret-conning events to try to appear consistent.
I seem to remember it being said that liars value the truth but bullshitters do not.
It'll make an interesting case study one day. The most dramatic part is that someone with this pathology made it to President. All politicians are liars to some degree or another, this is on a different axis.
IANAL, YMMV, normal disclaimers apply!
Although lying is certainly a disreputable act, the basic underlying purpose of defamation lawsuits is to compensate a person for real, substantial damages suffered with money being the main salve for the wound. (In matters defamatory per se, the damage is presumed) Almost certainly Stormy Daniels has suffered no damages and has probably profited from Trump's attacks on her. The courts have better ways to spend their time than adjudicate whether Trump's statements (many false) [or the statements of many, many other people who would use defamation law as a tool to remedy lying] are actionable.
Yes, we must outlaw "mendacious vaulgarians" and other "bad" people. Are there other freedoms or liberties that should be stripped from "bad" people?
@Jay: I don't think that Bob's saying that Trump should be granted fewer protections than a typical person because he's a BS artist; he's complaining that Trump being a BS artist is granting him more protections than someone who could be presumed to be speaking honestly would have.
That is, it seems to present a perverse incentive if a habitual liar gets protection for his false statements where a habitually honest person wouldn't: it incentivizes being a habitual liar, and I agree that that seems to be an unfortunate failing of the law.
No, most of them don't. The line among Trump supporters is that he should be taken "seriously, but not literally". He doesn't seem to mean the things he says to be literally true, or even understand the concept of words having specific meanings. He says things that convey his intentions in general terms, but his actual words are usually hyperbole, approximation, analogy, etc. And that's how his supporters understand him.
But beside what others have written, it seems to me that saying one doesn't believe a specific claim someone has made is inherently not actionable, even if there were no disclosed facts. One is not required to believe every story anyone tells. I have no facts about Daniels, I'd never even heard of her before this story blew up, but I don't believe her claim to have been threatened, simply because I don't find it credible. It sounds to me like a made-up story, not to be taken seriously without more evidence than her mere word. I need evidence to call her a thief or a rapist or whatever, but I don't need evidence to call her a liar, so my doing so doesn't imply that I have such evidence, and is therefore not an assertion of undisclosed (and false) facts.