Pigs Fly As Charles Harder And Donald Trump Support Anti-SLAPP Laws (When They Protect Trump, Of Course)

from the say-what-now dept

As you probably recall, Donald Trump has repeatedly talked about "opening up our libel laws" and making it easier to sue people for defamation "and win lots of money." As we pointed out when he first raised this issue, while Trump cannot directly impact libel laws (which are state laws, not federal, and are bounded by the 1st Amendment, which he cannot change), he can have an impact in many other ways -- from appointing judges to blocking any attempt at a federal anti-SLAPP law that would protect people from bogus defamation lawsuits.

So, back in the fall of 2018, we found it mildly amusing to see Trump himself using an anti-SLAPP law to successfully defeat a (highly questionable) defamation lawsuit from Stormy Daniels. Even more surprising was that Trump was represented in this case by lawyer Charles Harder, who has built up quite a reputation for suing media companies on behalf of the rich and powerful. As many people know, he was the lawyer in the case against us at Techdirt, in which he argued against the application of California's anti-SLAPP law to get us out of the lawsuit and to award us legal fees. An old Hollywood Reporter profile of Harder described how he, too, hoped to change the standards for defamation and make it easier to sue:

"I think the actual malice standard is too stringent," says Harder, perhaps previewing how a Donald Trump administration might approach the media and the laws governing it. "If you look at Justice [Byron] White's opinion in a Supreme Court case 20 years after New York Times v. Sullivan, he wrote a dissent and said we all made a mistake, that it has gotten to a point where it has created huge problems for a public figure who is defamed to do anything about it."

That profile also noted that Harder was well aware of the different anti-SLAPP laws in different jurisdictions:

In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases. The Hogan suit took place in Florida, where a jury might be friendlier to a local celebrity. The Heard case was in Nevada before it was dropped. Melania's lawsuit is proceeding in Maryland, which some legal experts speculate is because of its plaintiff-friendly rules that won't require her to pay the Daily Mail's legal bill if she loses.

In the case against us, Harder argued that the use of words like "liar" and "fake" constituted defamation. However, as Trump's lawyer defending him from Daniels' claim of defamation, Harder noted:

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.... Courts throughout the United States have routinely held that terminology similar to that used by the President is constitutionally protected opinion and non-actionable.

[....]

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.

And... in that instance, I completely agree with Harder and Trump, even though it would seem to contradict his argument in the case against us. But, hey, I guess zealous defense of your clients doesn't always require consistent arguments.

Along those lines, the case between Daniels and Trump continues, and Harder is now in the position of singing the praises of California and Texas's anti-SLAPP laws, because that's what helped Trump succeed against Daniels.

A key issue that has come up in the Daniels/Trump suit is one that various courts have differed on over the years: whether or not state anti-SLAPP laws can be used in federal courts. The various circuits are split on this issue, with some arguing that anti-SLAPP laws are procedural, and state laws cannot regulate federal rules of civil procedure, while others ague that the law is substantive, and thus can be applied in federal court. What makes things even more tricky is that while the Daniels/Trump suit is taking place in California, the anti-SLAPP law used was the Texas Citizens Participation Act (TCPA). And while the 9th Circuit (which covers California) has said that state anti-SLAPP laws (like California's) are substantive and thus can be used in federal court, just recently the 5th Circuit went the other way, and said that the TCPA is procedural, and thus cannot be applied in federal court. I think this is a bad and problematic ruling, which at the very least shows us the need for a federal anti-SLAPP law.

Either way, this leaves the Daniels case in a weird sort of nowhere land -- and on appeal Harder needs to argue that the TCPA can apply in federal court in California, even if it can't in Texas. And his argument is to point to 9th Circuit precedent regarding California's anti-SLAPP law:

At the hearing (see the video recording here), Harder called Texas' anti-SLAPP statute a "substantive" change (rather than a procedural one), and added it was virtually identical to California's anti-SLAPP statute, which has repeatedly been affirmed by the Ninth Circuit. He then quoted Wardlaw in Makaeff v. Trump University when she wrote, "Through anti-SLAPP laws, the legislatures of Arizona, California, Guam, Hawaii, Nevada, Oregon, and Washington have decided to impose substantive limitations on certain state law actions. Refusing to recognize these limitations in federal court is bad policy. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.

It's pretty incredible to have Harder making that argument, but hey, Charles, welcome to team pro free speech and against frivolous defamation lawsuits. The more, the merrier.

The appeals court panel did point out to Harder that if the case had been brought in Texas federal court, under the recent 5th Circuit ruling, he wouldn't be allowed to use the TCPA, and Harder's response was basically that since the case was filed before that ruling, perhaps the 5th Circuit would have ruled otherwise if it was a different case (or this case) up for review:

"The only reason is, had you brought this case in Texas federal court, you would not have this motion available to you, right?" asked Wardlaw.

"At the time we filed it, the Klocke decision had not come about," answered Harder. "If our case had preceded the other one, perhaps the Fifth Circuit would have been persuaded otherwise. I don't know."

And then, as the Hollywood Reporter notes, Harder defended strong anti-SLAPP laws in federal court, warning that otherwise lawyers might go forum shopping (?!?):

Harder then made the point that without federal court application of anti-SLAPP statutes, plaintiffs would "forum-shop" their suits into such jurisdictions in order to gain advantage. Said Harder, "This court correctly recognized that if the legislature wants to get rid of SLAPP suits, you apply the SLAPP statutes everywhere they can be applied including in federal courts. Klocke wasn't looking at forum shopping. I think it missed an important point."

Remember, this is the same lawyer who keeps charts of different forum rules and has a history of filing his lawsuit strategically -- frequently in places with no or weak anti-SLAPP laws.

Anyway, as I noted when Harder/Trump initially won this ruling, I think it's the right ruling and I'm actually happy to see that Harder and Trump find themselves in a position of supporting free speech and good, effective, anti-SLAPP laws -- though I'm skeptical if they believe it applies beyond situations in which they, themselves, have immediate benefit.

Filed Under: anti-slapp, california, charles harder, defamation, donald trump, federal anti-slapp, forum shopping, jurisdiction, stephanie clifford, stormy daniels, tcpa, texas


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  • icon
    Samuel Abram (profile), 6 Feb 2020 @ 7:58am

    That reminds me…

    Harder and Trumpy’s seemingly illogical position to be in favor of everything they heretofore stood against reminds me of an exchange by Stephen Colbert and his brother Ed, a lawyer, on the Colbert Réport:

    Stephen: You’ve taken three different positions in the span of this segment. What’s your actual position?

    Ed: Who’s paying me?

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

  • icon
    aerinai (profile), 6 Feb 2020 @ 8:47am

    Caveman Lawyer

    I guess the best way to look at how a lawyer goes about their job without hating themselves for their immediate hypocrisy is they use the law as a cudgel. Whoever has the bigger stick wins. Sometimes you have to take away a stick because you aren't using it right now, but that is ok.There are more sticks around just waiting to be picked up and bludgeon each other with, you just have to know where to look.

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

    • icon
      Thad (profile), 6 Feb 2020 @ 9:48am

      Re: Caveman Lawyer

      Certainly part of a lawyer's job is to be able to argue either side of an issue, and there's something that feels dishonest about that.

      But it's not really fair to judge the entire profession by guys like Harder, or Avenatti, or Dershowitz, or...probably anybody whose name you've ever heard on TV. There's kind of a self-selection thing going on here; if a lawyer does something that gets them on TV, by their nature they're not like most lawyers; they're either behaving differently than most lawyers do, have attracted a high-profile case of the sort that most lawyers don't, or both.

      There was a post by Mark Evanier last week, where he compared Dershowitz's shamelessness in contradicting his previous statements to a situation he (Evanier) witnessed when he was working on a TV show in the '80s. The point of the story is, there are people who make their living by saying whatever it takes to get money and fame, and don't care about what that says about their integrity.

      Harder is not a typical lawyer. None of Trump's lawyers are typical. Because they're all people who are willing to accept a client like Donald Trump. They're certainly not doing that because he's a good client, or even because they expect him to pay them, seeing as he's infamous for not paying people who do work for him. They're doing it because working for such a high-profile client is good for their careers, or at least they believe it is.

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

      • icon
        Stephen T. Stone (profile), 6 Feb 2020 @ 10:44am

        part of a lawyer's job is to be able to argue either side of an issue

        Which is as it should be. A lawyer should prepare to both argue for their client’s case and know what arguments the other “side” will make against that case.

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

      • icon
        Scary Devil Monastery (profile), 7 Feb 2020 @ 5:52am

        Re: Re: Caveman Lawyer

        "Certainly part of a lawyer's job is to be able to argue either side of an issue, and there's something that feels dishonest about that."

        Not in itself. A lawyer's job is all about presenting a case in a way as flattering as possible for the side he's representing, using existing law as backdrop and scaffold.

        The main issue comes from the fact that this often means to practice outright deception without telling a single actual untruth because that's the only way it's possible to defend the client. At that point the lawyer becomes a sleazy piece of shit whose only claim not to be a co-conspirator consists of a legal loophole.

        As you imply, lawyers who accept a certain kind of clients can often be considered to be the same sort of person as the client they chose to represent.

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

  • icon
    Stephen T. Stone (profile), 6 Feb 2020 @ 10:01am

    I'm skeptical if they believe it applies beyond situations in which they, themselves, have immediate benefit.

    No, they do not — especially Trump, who only cares about whether a given situation has an immediate personal benefit for himself.

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

  • identicon
    Anonymous Coward, 6 Feb 2020 @ 10:25am

    Dear Donald,

    The people will still laugh at you.

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

  • identicon
    Anonymous Coward, 6 Feb 2020 @ 11:12am

    I’m sorry

    SLAPP Harder, Donny.

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

  • identicon
    Anonymous Coward, 6 Feb 2020 @ 11:19am

    I’m sorry

    SLAPP Harder, Donny.

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

  • icon
    That One Guy (profile), 6 Feb 2020 @ 11:28am

    'These laws are great, they're benefiting me right now!'

    It's pretty incredible to have Harder making that argument, but hey, Charles, welcome to team pro free speech and against frivolous defamation lawsuits. The more, the merrier.

    Yeah, I'd maybe hold off on printing the membership cards, because I can all but guarantee you that the second either of them are involved in a SLAPP suit going the other way they will turn right around and argue that anti-SLAPP laws are terrible and only protect terrible people.

    His position here has nothing to do with supporting free speech and everything to do with supporting a law that is beneficial to him at the moment. The second that changes so will his position.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    KEVIN FEARS, 6 Feb 2020 @ 12:27pm

    telling the truth for dummies...

    if [mike] would only speak about verified facts, this would not bother him. WOULD IT? I intend to introduce a bill that forces you to verify all accusation within thirty days, before trial, [so as not to waste the court's time] or publically retract it with an apology. or face a lawsuit of literally their own making.
    Verifiable facts stand on their own. Without bias. They don't hide behind any self declared title. They don't need to. DO THEY MIKE?

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

    • identicon
      Anonymous Coward, 6 Feb 2020 @ 3:44pm

      Re: telling the truth for children

      Shhh honey. The adults are talking.

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

    • icon
      Toom1275 (profile), 6 Feb 2020 @ 9:38pm

      Re: telling the truth for dummies...

      Except for when having verified unbiased facts on his side wasn't enough to protect Mike from that malicious, frivolous lawsuit of Shiva Ayyadurai (Who tries to hide behind a self-declared title) 's making.

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

  • identicon
    Anonymous Coward, 6 Feb 2020 @ 12:28pm

    It's a weird and interesting argument to watch, but why not just claim that California's anti-SLAPP law should apply?

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

  • identicon
    Anonymous Coward, 6 Feb 2020 @ 1:07pm

    And then, as the Hollywood Reporter notes, Harder defended strong anti-SLAPP laws in federal court, warning that otherwise lawyers might go forum shopping (?!?)

    Remember to actually listen to hypocrites. They know what they're talking about!

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

  • icon
    Shel10 (profile), 6 Feb 2020 @ 2:23pm

    Libel laws should be opened to allow suits aimed at Senators and Representatives. They can tell any lie and defame without penalty as long as it's done within the context of their official duties. That's how Shifty Schif and Chucky can get away with defamation. News reporters and commentators get away with it because they are only repeating what was said.

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

    • identicon
      Anonymous Coward, 6 Feb 2020 @ 2:54pm

      Re:

      Libel laws should be opened to allow suits aimed at Senators and Representatives.

      What makes you think they aren't currently?

      They can tell any lie and defame without penalty as long as it's done within the context of their official duties.

      No, they can because generally they lie and "defame" about other public figures which requires a much higher bar to clear than if it was against a private citizen.

      That's how Shifty Schif and Chucky can get away with defamation.

      Interesting how you pick two examples from the same party using a certain someone's derogatory nicknames for them.

      News reporters and commentators get away with it because they are only repeating what was said.

      Well, that and it's not illegal to tell a lie and potentially false statements about public figures have to clear a really high bar to actually count as defamation. The hazards of being a public figure.

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

    • icon
      That One Guy (profile), 6 Feb 2020 @ 2:56pm

      Re:

      That's how Shifty Schif and Chucky can get away with defamation.

      Well you certainly sound like someone who should be taken seriously.

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

    • icon
      Stephen T. Stone (profile), 6 Feb 2020 @ 3:26pm

      Libel laws should be opened to allow suits aimed at Senators and Representatives.

      Cool, we’ll do that right after we make sure libel laws can be aimed at the president.

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

    • identicon
      Anonymous Coward, 6 Feb 2020 @ 3:45pm

      Re:

      Can you show us on the doll where the Democrats hurt your feelings?

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

    • identicon
      Anonymous Coward, 6 Feb 2020 @ 4:03pm

      Re:

      In the us, it's not defamation when it is true.

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

  • icon
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