Stormy Daniels' Lawyer Sends Totally Bogus, Censorial Defamation Threat To Reporter He Doesn't Like

from the not-how-it-works,-jackass dept

No matter what you might think of the various legal fights involving Stormy Daniels, her lawyer, Michael Avenatti, is making quite a name for himself over the past couple of months -- partly for his legal strategy, partly for breaking news about Michael Cohen and Donald Trump, and partly for constantly appearing on TV at what appears to be every possible opportunity. Even if you happen to support his dogged focus on calling out Cohen and Trump, it is worth noting that Avenatti seems to fall into the camp of a few other lawyers in filing and threatening completely bogus defamation threats trying to silence people. Last month, there was some news when Daniels, represented by Avenatti, sued Donald Trump for defamation over a tweet of Trump's.

I could probably write 90,000 words just to give you a basic background of how we got here, but assuming you follow at least some of the news around this, the short version is that Daniels claimed on 60 Minutes that a few years back she was threatened in a parking lot by a man who told her to leave Trump alone. There was some dispute about the veracity of this claim, and Daniels eventually had a sketch artist draw what the guy looked like, leading Trump to then tweet: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!" Daniels sued over this tweet, calling it defamatory.

As First Amendment lawyer Ken "Popehat" White notes, this is a "very weak" case, and there are a whole bunch of reasons why Trump is likely to get it dismissed -- including that previous courts have ruled that Trump's tweets can't be taken literally, and a fairly strong argument that Trump's tweets are opinions based on disclosed facts, rather than false factual statements themselves (not to mention the high bar needed to show that Trump's tweets involved knowledge of falsity or reckless disregard for the truth -- while Trump may, in general, have a reckless disregard for the truth, that's not going to meet the legal standard for a defamation case). First Amendment lawyer Marc Randazza went, shall we say, a bit further in suggesting that Avenatti's lawsuit was a bad idea. You can read that entire link on why the lawsuit may backfire on Daniels/Avenatti, or it can be summed up in the following tweet from Randazza:

If you can't read that, it's Randazza responding to Avenatti's tweet about the filing of the lawsuit with the following (*cough*) professional assessment:

You must be mentally impaired to have filed this stupid shit. I hope your malpractice insurance is paid up, Trump will be able to invoke the Texas anti-slap law against your client (last I checked she was a Texas resident). See Adelson v. Harris; Tobinick v. Novella.

Anyway, whatever happens with that case, it does not seem to have resulted in Avenatti becoming any more clued in on not abusing defamation law. Earlier this week he sent an angry defamation threat email to reporter Peter Hasson from the Daily Caller:

If you can't read that, it says:

Off the Record.

Let me be clear. If you and your colleagues do not stop with the hit pieces that are full of lies and defamatory statements, I will have no choice but to sue each of you and your publication for defamation. During that process, we will expose your publication for what it truly is. We will also recover significant damages against each of you that participated personally. So if I were you, I would tell Mr. Trump to find someone else to fabricate things about me.

If you think I'm kidding, you really don't know anything about me. This is the last warning.

All rights are expressly reserved.

Michael

So, first off, that's not how "Off the Record" works. You don't get to just chant it like an incantation and reporters have to abide by it. It is a negotiation, where you first must ask a reporter if they'll accept your statement off the record, and then it's established that it is (and, even then, some journalists will still choose to burn sources who give off the record statements, though at a potential cost of no longer getting quotes in the future). Even more bizarre is that, even after this, Avenatti appears to believe that him merely stating "off the record" carries some sort of magical requirements which don't actually exist:

“I sent an email off the record. It should remain off the record. It speaks for itself,” Avenatti told TheWrap on Monday.

Yeah, it speaks for itself that a press-hungry lawyer doesn't understand how "Off the Record" actually works.

But, more importantly, threatening journalists for reporting on you is... bad. I'm no fan of the Daily Caller myself, and think it's a hack publication that publishes misleading, fear mongering, junk, often to prop up our dunderhead of a President, but that doesn't mean it's defamatory.

The fact that Avenatti cites no actual false statement of fact, and is just screaming about generalities, tends to be the sign of someone looking to censor the press, rather than someone who has a legitimate defamation claim. Also, given that Avenatti's silly threat came just after the Daily Caller published an article about him, the email also serves as something of a Streisand Effect calling more attention to what the Daily Caller had to say.

Even worse, Avenatti went on TV (natch) to defend his bogus defamation threat, because (he claims) not all journalists are ethical:

“All journalists are not ethical, just because they’re a journalist. There’s good journalists and there’s bad journalists. There’s ethical journalists and unethical journalists,” said Avenatti on the Monday evening show.

“If we encounter journalists that don’t get their facts straight by design, don’t follow the basic rules of journalism, purposely skew stories to fit their own political dialogue of what they want the message to be, we’re going to continue to call them out on that. And there’s nothing wrong with that.”

Well, first, it's true that not all journalists are ethical. And it's true that there's "nothing wrong" with "calling out" journalists who you feel don't follow the basic rules of journalism. But "calling out" is not the same as "threatening with entirely bogus defamation lawsuits." And there's a pretty big difference there.

We've covered this ground for many years. People get annoyed or upset about lots of things said about them -- and sometimes that stuff appears in publications with large audiences (or small audiences). Threatening to sue people for defamation just because they said something you don't like is bad. It's abusive and censorial and bullying. If anything deserves being "called out" it's lawyers abusing defamation law or threats under defamation law to seek to intimidate reporters, no matter how ethical or unethical those reporters might be. If Avenatti believes that the Daily Caller's reporting on him is bogus, then respond to it and explain why it's bogus. Responding with a bullshit censorial threat, without any explanation of why the site's reporting is in error, suggests anger at being criticized, rather than any sort of legitimate complaint.


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  • identicon
    I.T. Guy, 15 May 2018 @ 12:02pm

    " Let me be clear. If you and your colleagues do not stop with the hit pieces that are full of lies and defamatory statements, I will have no choice but to sue each of you and your publication for defamation. During that process, we will expose your publication for what it truly is. We will also recover significant damages against each of you that participated personally. So if I were you, I would tell Mr. Trump to find someone else to fabricate things about me.

    If you think I'm kidding, you really don't know anything about me. This is the last warning.

    All rights are expressly reserved.

    Michael "

    Whaaaa if you don't stop talking about me I gonna beat you up.

    What an idiot. Must be a friend of wiLLie here.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 May 2018 @ 12:03pm

    Well, not all lawyers are ethical, doesn't mean they don't practice law, including sending bogus threat letters (at least until they are disbarred).

    reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 15 May 2018 @ 12:09pm

    John Oliver and Bob Murray....

    Bob Murray suing John Oliver and his giant squirrel is the lawsuit I'd have Mr Avenatti look at!

    Yeah, I know, wrong jurisdiction...but still!

    Next thing you know, Mr Oliver will be saying "Go away, Stormy"!

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 15 May 2018 @ 12:28pm

    You don't mention an alleged $8M from unknown source got when took on Daniels...

    Nor the $5M due the IRS after a "pump and dump" coffee cafe scheme that's resulted in 43 law suits -- and also owes $160K for coffee!

    Even Masnick has to back off Avenatti! -- And yet not long ago, he clearly hoped had a stick to use on Trump.

    Makes an unprecedented TWO in row at least neutral to Trump! -- Wonder if has anything to do with Netanyahu now calling Trump a "great leader" (or similar) for moving US embassy to Jerusalem... Nah.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 May 2018 @ 12:51pm

    Stormy and Trump might be fighting...

    but their lawyers sure to agree on using similar tactics.

    When both sides are shit? which one should you cheer for?

    reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 15 May 2018 @ 1:12pm

    Dear Mr Avenatti,

    Until recently, you were batting 1000. Now you are flailing. Don't go full flail.

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 15 May 2018 @ 1:20pm

      Re:

      I don't think he's flailing; I think he's amoral. He knows these defamation threats (and the existing defamation suit) are groundless; he doesn't care.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 May 2018 @ 1:27pm

    the new Lindbergh baby kidnapping?

    Sometimes I wonder if stories like this are simply a tool to try to generate (possibly massive) search-engine traffic. Before 'social sites' were dominant, it was a common way for small sites and blogs to expand their audience by crafting at least some of their stories to exploit the subjects that people were currently searching for.

    Considering how the Stormy Daniels' salacious (non)story has had saturation news coverage, analysis, debate, and speculation non-stop from virtually every conceivable angle imaginable, what other possible reason might there be for rubbing it in our faces one more time?

    Hopefully, to present a side that has somehow not been presented anywhere else, but if so, it's also possible that many of us are so sick of hearing about it that we wouldn't even notice, or care to notice.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 May 2018 @ 2:48pm

    I DECLARE OFF THE RECORD!

    reply to this | link to this | view in chronology ]

  • icon
    Dan (profile), 15 May 2018 @ 3:53pm

    ...but...

    Obviously written by an amateur. No "govern yourself accordingly," nor even "welcome to the big leagues."

    reply to this | link to this | view in chronology ]

  • identicon
    John Smith, 16 May 2018 @ 2:17am

    One of these "free speech lawyers" managed to get something taken down from a site which supposedly doesn't censor. I have proof, yet no one seems too interested in the story.

    Why do the same small number of attorneys get knighted as "leaders" in something that extends way beyond them? Being loud and frequent in one's postings does n't make one an expert, it just indicates that they have more of a dog in the fight than those who oppose them.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 May 2018 @ 4:06am

    There is a slight difference between $$\forall (x \in X) \not f(x)$$ and $$\not \forall (x \in X) f(x)$$

    Funny, how he mixes it...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 May 2018 @ 5:49am

    Not tech news.

    Not tech news. Didn't read.

    reply to this | link to this | view in chronology ]

    • identicon
      Professor Ronny, 16 May 2018 @ 8:32am

      Re: Not tech news.

      I count 11 posts from Anonymous Coward for an article you did not read.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 May 2018 @ 12:28pm

        Re: Re: Not tech news.

        You do realize that posts from Anonymous Coward is probably from multiple people, right?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 May 2018 @ 6:41pm

        Re: Re: Not tech news.

        No, I only did that twice. I'm not the only one here who is sick of seeing non-tech articles on here.

        I always thought Techdirt was supposed to be about "dirt" on "tech", not just a random assortment of tech news and dirt news that have nothing to do with one another.

        reply to this | link to this | view in chronology ]

  • icon
    tom (profile), 16 May 2018 @ 10:57am

    Claiming an email is "off the record" is a hoot! How many times have we read that most email providers are saving emails, both sent and received, forever and data mining the crap out of them?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 May 2018 @ 12:10pm

    Any article concerning Stormy Daniels that doesn't contain the words "gold digging whore" is not worth reading.

    If you don't believe me, ask Bill Burr.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 May 2018 @ 12:13pm

    Anyone in PR with half a brain knows there is no such thing as "off the record"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 May 2018 @ 1:09am

    "Even if you happen to support his dogged focus on calling out Cohen and Trump,..."

    Nobody does Mike, short of zealots, because they've only been called out on the things that you also do yourselves but simply haven't been caught at. Denying it doesn't change anything.

    reply to this | link to this | view in chronology ]

  • identicon
    Zonker, 17 May 2018 @ 3:17pm

    Avenatti

    All lawyers are not ethical, just because they’re a lawyer. There’s good lawyers and there’s bad lawyers. There’s ethical lawyers and unethical lawyers.

    If we encounter lawyers that don’t get their lawsuits straight by design, don’t follow the basic rules of law, purposely skew laws to fit their own political dialogue of what they want the message to be, we’re going to continue to call them out on that. And there’s nothing wrong with that.

    reply to this | link to this | view in chronology ]

  • icon
    Popeye2 (profile), 29 May 2018 @ 8:18pm

    LA Times Stormy Daniels' attorney hit with $10-million judgment

    reply to this | link to this | view in chronology ]


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