Will Donald Trump Support A Federal Anti-SLAPP Law Now That It's Helped Him Win Stormy Daniels' Defamation Suit?

from the fixing-libel-laws dept

Every few months, it seems, President Trump trots out some nonsense about how our current defamation laws are unfair and he promises to open them up. It keeps happening. And it's not surprising because Trump himself has threatened defamation lawsuits many times, and even occasionally filed an actual defamation lawsuit, such as the one against Tim O'Brien, which Trump lost completely -- though, tellingly he later admitted that he felt like he succeeded in forcing O'Brien to spend money in court:

"I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.'"

Of course it's this kind of thinking that is the reason why we support stronger anti-SLAPP laws and, in particular, a federal anti-SLAPP law to protect people from having to deal with potentially life-ruining defamation lawsuits from those better positioned to handle them. Of course, this is also why we figure that any movement on a federal anti-SLAPP law is dead in the water while Trump is still President. Given his comments on moving libel laws in the other direction, it seems unlikely he'd ever sign such a bill.

But... Trump just won a defamation lawsuit filed by Stormy Daniels, and it was because of a strong anti-SLAPP law in Texas, that might now allow him to go after legal fees as well. Of course, there have been moments when Trump has recognized that "opening up our libel laws" might come back to bite him. As he said in a NY Times interview, when asked about opening up libel laws:

Actually, somebody said to me on that, they said, ‘You know, it’s a great idea, softening up those laws, but you may get sued a lot more.’ I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’

And now that Trump has successfully used an anti-SLAPP law to get out of a lawsuit, perhaps he'll be a bit more open to the idea of anti-SLAPP laws as well.

This particular lawsuit, brought by Stormy Daniels, represented by Michael Avenatti, was always an incredibly stupid lawsuit that Trump was obviously going to win. There are a bunch of legal disputes and arguments among these two, but just to clarify, back when Daniels was on 60 Minutes, she claimed that she had agreed to tell her story of her affair with Trump back in 2011, but was allegedly threatened in a Las Vegas parking lot:

Then in 2011, after she had agreed to tell her story to In Touch magazine for $15,000, Daniels said she was threatened by a man in a Las Vegas parking lot who warned her to "Leave Trump alone. Forget the story."

Sometime after this, Stormy Daniels had a sketch artist sketch the man she said approached her in Las Vegas. Some Trump supporters noted what they believed to be an uncanny similarity between the eventual sketch and Daniels' ex-husband, and tweeted this. Trump then retweeted one such tweet along with the following text: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

And it's that tweet that Daniels/Avenatti sued over. Again, this was clearly going nowhere. That tweet is not at all defamatory under the 1st Amendment. In his defense, Trump, who was represented by Charles Harder*, filed an anti-SLAPP motion, arguing that Trump was protected under Texas' anti-SLAPP law, that the case should be dismissed, and that Trump should be awarded attorneys' fees. And the court easily agreed.

* Big disclaimer here: Harder is at this moment representing a plaintiff in a still ongoing lawsuit against me personally (as well as Techdirt), claiming defamation, and in which we made a motion using California's anti-SLAPP law. In the Trump case, however, it is Harder/Trump making use of anti-SLAPP laws (in this case, Texas') and I agree with Harder and Trump that this claim was a SLAPP suit and am glad the case was dismissed.

In their motion for the anti-SLAPP dismissal, Harder argued that Trump's tweet was clearly protected by the First Amendment, and thus the anti-SLAPP law should lead to the dismissal of the case. Frankly, I think Harder makes a very strong argument here:

Here, the Comment nowhere implies that President Trump has any special information or insight as to what did or did not happen in a Las Vegas parking lot in 2011. Rather, he gives an opinion that he does not find Plaintiff’s account credible. This is constitutionally-protected and therefore nonactionable, especially because the Comment arose from a public dispute between a major politician and one of his adversaries.

It does not matter that the President used strident language (“nonexistent,” “con job,” and “fake news”) in expressing his opinion doubting the veracity of Plaintiff’s allegation rather than using more genteel terminology. Rhetorical hyperbole is not actionable as defamation. Neely v. Wilson, 418 S.W.3d 52, 83-84 (Tex. 2013). Courts throughout the United States have routinely held that terminology similar to that used by the President is constitutionally protected opinion and non-actionable. See e.g., McCabe v. Rattiner, 814 F.2d 839, 843 (1st Cir. 1987) (“scam” not defamatory); Oilman v. Evans, 750 F.2d 970, 987 (D.C. Cir. 1984) (en banc) (political columnist labeling a political figure a “Marxist” not defamatory); Letter Carriers v. Austin, 418 U.S. 264, 282-83 (1974) (use of term “scab” in labor dispute not defamatory); Buckley v. Littell, 539 F.2d 882, 893-94 (2d Cir. 1976) (labeling political writer a “fascist” not defamatory); Greene v. State, 21 So.3d 348, 352 (La. App. 2009) (labeling state employee “pathological liar” not actionable).

Any finding by the Court that the Comment has a defamatory meaning and is not protected opinion could have a chilling effect on political debate throughout the United States forever. Politicians frequently express their opinions about their political adversaries, often in strident and blunt terms. In 1964, for instance, Lyndon Johnson ran an advertisement that implied his opponent, Barry Goldwater, would start a nuclear war. John Kennedy campaigned against incumbent Vice President Richard Nixon in 1960 based on claims of a “missile gap” with the Soviet Union that turned out to be grossly misleading. Bill Clinton allegedly misstated the budget deficit in his 1992 campaign against George H.W. Bush. None of these statements were anything more than opinions, and none could or should form the basis of a defamation suit.

Indeed, since the founding of our republic, politicians have often expressed their opinions by branding their opponents as “liars.” Doing so does not subject every such politician to a defamation claim. President Trump himself has expressed his opinions regarding multiple adversaries, sometimes referring to his opponents by colorful names such as “Lyin’ Ted” and “Crooked Hillary.” A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.

It's a strong argument. And the judge easily agreed, noting that the tweet was clearly rhetorical hyperbole:

The Court agrees with Mr. Trump's argument because the tweet in question constitutes "rhetorical hyperbole" normally associated with politics and public discourse in the United States. The First Amendment protects this type of rhetorical statement.

"It is well settled that 'the meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements." See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (quoting Turner v. KTROK Television, Inc., 38 S.W. 3d 103, 115 (Tex. 2000)). To assess whether a statement is "rhetorical hyperbole," this Court looks to the statement "as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it."

Furthermore:

The instant case is similar to Rehak in that Mr. Trump, as President, made a hyperbolic statement against a person who has sought to publicly present herself as a political adversary to him. In filings before this Court, Ms. Clifford has challenged the legitimacy of Mr. Trump's victory in the 2016 Presidential election. Mr. Trump's tweet served as a public rejoinder to allegations made by Plaintiff. If this Court were to prevent Mr. Trump from engaging in this type of "rhetorical hyperbole" against a political adversary, it would significantly hamper the office of the President. Any strongly-worded response by a president to another politician or public figure could constitute an action for defamation. This would deprive this country of the "discourse" common to the political process. In short, should Plaintiff publicly voice her opinions about Mr. Trump, Mr. Trump is entitled to publicly voice non-actionable opinions about Plaintiff. To allow Plaintiff to proceed with her defamation action would, in effect, permit Plaintiff to make public allegations against the President without giving him the opportunity to respond. Such a holding would violate the First Amendment.

And thus, in the end, Trump wins his anti-SLAPP ruling and can now move to seek legal fees if he so chooses. Of course, Avenatti -- in a now deleted tweet -- called the ruling "limited":

It is not, in any way, limited. It is the proper application of Texas' anti-SLAPP law to a bogus defamation claim which Avenatti himself admits is part of an effort to cost Trump more money through the other lawsuits Avenatti has going against Trump. Soon afterwards Avenatti posted that he had already appealed the ruling to the 9th Circuit appeals court:

He and Daniels will almost certainly lose this appeal and Trump will almost certainly win. But the real question is whether or not this helps Trump recognize the value of strong anti-SLAPP laws. It seems like now would be a good time for Congress to finally move on the federal anti-SLAPP law, while reminding Trump that it may have just saved him a bunch of money...


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  • icon
    That Anonymous Coward (profile), 16 Oct 2018 @ 12:13pm

    "* Big disclaimer here: Harder is at this moment representing a plaintiff in a still ongoing lawsuit against me personally (as well as Techdirt), claiming defamation, and in which we made a motion using California's anti-SLAPP law. In the Trump case, however, it is Harder/Trump making use of anti-SLAPP laws (in this case, Texas') and I agree with Harder and Trump that this claim was a SLAPP suit and am glad the case was dismissed."

    People can be giant fuckboys & still have good points.

    A federal anti-SLAPP law has been needed for a very long time, much more than laws to retroactively try to make the company witht he biggest pocket the fall guy for a 'national crisis' that there is no evidence to support it being a crisis.

    I doubt Trump would get behind it simply because he likes playing lawfare & any law that might be used to blow any of his famed 'i'mma sue you for making me look bad' threats out of the water.

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

    • icon
      Thad (profile), 16 Oct 2018 @ 12:38pm

      Re:

      I doubt Trump would get behind it simply because he likes playing lawfare & any law that might be used to blow any of his famed 'i'mma sue you for making me look bad' threats out of the water.

      I'm inclined to agree, but Trump's opinions often shift based on the last person he talked to.

      My first thought was Betteridge's Law of Headlines, but my second was, who the fuck knows what Trump is going to do?

      He has an extremely poor sense of irony and self-awareness. I find it very easy to believe that he doesn't even realize that he won this case because of the very same libel laws that he wants to "open up".

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

      • icon
        That Anonymous Coward (profile), 16 Oct 2018 @ 12:55pm

        Re: Re:

        It is the bubble effect I mention way to much.

        People are so deep into their own bubble they can't look outside anymore.
        "Lefties" wanted "Righties" silenced for mean words... they got their way & now are losing their minds because the rules apply to them as well & they couldn't understand what they demanded can be applied equally.

        "Righties" want to believe they are being silenced & mistreated, but when a "Leftie" claims it happened to them it is fake news & only the "Righties" have the 1st Amendment rights to say whatever & not face any consequences.

        Claiming to want to open up the libel laws is just a slogan.
        "Everyone lies about me & I should open these laws up!"
        "Fake News!" - to a video showing him say what he claims he didn't say.

        Somehow the most powerful man in the country is playing the poor victim to much acclaim from the base.
        MAGA hats - made in China
        Trump branded anything - made in China
        He tears into other companies for production in China but if he does it, it is a good business move.

        Something something Orwell & DOUBLETHINK

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

        • icon
          Thad (profile), 16 Oct 2018 @ 2:26pm

          Re: Re: Re:

          Claiming to want to open up the libel laws is just a slogan.

          No, he was threatening people with vexatious litigation long before he went into politics. He really does want to be able to sue people for criticizing him.

          He just doesn't think that the laws apply to him in the same way they apply to everybody else.

          And given his entire life to date, it's no wonder he would reach that conclusion.

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

        • icon
          Stephen T. Stone (profile), 16 Oct 2018 @ 2:57pm

          Claiming to want to open up the libel laws is just a slogan.

          Lots of people assumed “build the wall” was “just a slogan”…up until he won the election and gained the power necessary to make his slogan a reality.

          And I can assure you that if he could do so without being seriously questioned about an (ab)use of power, he would have Hillary Clinton tossed in prison for even the smallest charge his attorneys could level at her. (Or for no reason other than he hates her.)

          Never assume a slogan is just a slogan with Trump. If he says he wants to open up the libel laws, believe him.

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

          • icon
            Thad (profile), 16 Oct 2018 @ 3:24pm

            Re:

            Lots of people assumed “build the wall” was “just a slogan”…up until he won the election and gained the power necessary to make his slogan a reality.

            Well, he gained the power necessary to try to make it a reality, anyway.

            And I can assure you that if he could do so without being seriously questioned about an (ab)use of power, he would have Hillary Clinton tossed in prison for even the smallest charge his attorneys could level at her. (Or for no reason other than he hates her.)

            I don't see any sign that Trump's worried about being questioned about abusing his power.

            The reason Trump hasn't gotten "his attorneys" to charge Hillary Clinton with anything is that's not how the presidency works. Trump hired a crony in Jeff Sessions thinking that he was hiring a lawyer for himself, but that's not what the AG is; he's not the president's attorney, he's the country's. And while I don't have much positive to say about Sessions, I'll grant that he's proven to be less of a lapdog than Trump expected.

            Never assume a slogan is just a slogan with Trump. If he says he wants to open up the libel laws, believe him.

            He certainly wants to. But he doesn't actually have the power to do that.

            Trump has demonstrated, time and again, that he has a child's understanding of how the US government actually works. The president doesn't actually get to do whatever he wants. He can't make laws, he can't force the DoJ to do what he wants, and he can be challenged in court. (And while he's certainly got a friendly Supreme Court, there's no way "opening up libel laws" would pass muster in the Roberts Court, even with two Trump appointees on the bench and even if it could pass Congress.)

            Trump has a lot of power. But there are limits on that power, and he seems to be continually surprised and angry that those limits exist.

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

    • identicon
      John Smith, 16 Oct 2018 @ 5:37pm

      Re:

      "That AC" is only half right: he's not anonymous.

      Very easy to figure out who that is.

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

      • icon
        John Roddy (profile), 16 Oct 2018 @ 6:21pm

        Re: Re:

        I'm assuming Batman. And I'm going to be very disappointing if it's not.

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

      • icon
        That Anonymous Coward (profile), 17 Oct 2018 @ 12:26am

        Re: Re:

        Bring it.
        I need a good fscking laugh.

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

        • icon
          That Anonymous Coward (profile), 17 Oct 2018 @ 12:36am

          Re: Re: Re:

          I'll add the guesses to the long list of incorrect assumptions of my identity from the lovely people behind Prenda.

          I think near the end I had been accused of being like 8 different lawyers they had faced in court, they refused to believe I didn't have a JD and never played a lawyer on tv. But I think much of that was born out of their belief only a lawyer could tear apart their extortion scheme... like many people who want to take a run at me... they aren't very smart.

          So, who do YOU claim I am??
          Make sure its entertaining.

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

      • icon
        That Anonymous Coward (profile), 18 Oct 2018 @ 2:27am

        Re: Re:

        I'm waaaaaaaaaaaaaaiting...........

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

      • icon
        That Anonymous Coward (profile), 19 Oct 2018 @ 3:42pm

        Re: Re:

        *yawns*

        Another day, another mouthy fuckboy lacking the balls to backup his claims.

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

  • icon
    DannyB (profile), 16 Oct 2018 @ 12:16pm

    Federal Rules of Civil Procedure

    [the jackass] later admitted that he felt like he succeeded in forcing O'Brien to spend money in court

    I seem to remember from the Groklaw days that it is a violation of FRCP to deliberately try to increase the litigation costs of the other party.

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

  • identicon
    Anonymous Coward, 16 Oct 2018 @ 1:26pm

    Why is Texas law being discussed in reference to a lawsuit pending in a California federal district court?

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

    • icon
      John Roddy (profile), 16 Oct 2018 @ 3:45pm

      Because, under New York law, this California court determined that the Texas law was proper to defend the resident of DC.

      It does actually make sense if you read the document (thought it may take one or two extra passes to understand...), but good grief, jurisdiction is a bastard.

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

  • icon
    stderric (profile), 16 Oct 2018 @ 2:04pm

    I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’

    For once, I both believe him and agree with him.

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

  • This comment has been flagged by the community. Click here to show it
    icon
    Richard Bennett (profile), 16 Oct 2018 @ 3:44pm

    Rhetorical hyperbole

    "Rhetorical hyperbole is not actionable as defamation. Neely v. Wilson, 418 S.W.3d 52, 83-84 (Tex. 2013)"

    Music to your ears, right Masnick?

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

  • identicon
    ThruThicknThicker, 16 Oct 2018 @ 6:25pm

    Trump would support a federal anti-slapp statute...

    Only if it applied to him and him alone.
    Can't have people being protected against the lawsuits filed by the FotUS (Fucktard of the United States).

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


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