Free Speech

Ninth Circuit Affirms Dismissal of Stormy Daniels' Libel Lawsuit Against President Trump

Trump's Tweet ("A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!") was opinion, and thus not actionable.

|The Volokh Conspiracy |

From yesterday's Clifford v. Trump, decided by Chief Judge Sidney Thomas, Judge Kim McLane Wardlaw, and Jacqueline Nguyen:

As alleged in the complaint, Ms. Clifford began an intimate relationship with Mr. Trump in 2006. Five years later, in 2011, Ms. Clifford agreed to cooperate with a magazine that intended to publish a story about the relationship. Ms. Clifford alleges that a few weeks after she agreed to assist with the magazine story, she was approached by an unknown man in a Las Vegas parking lot who told her "Leave Trump alone. Forget the story," and threatened that harm would come to her if she continued to cooperate with the magazine. Ultimately, the story was not published.

In 2018, after Mr. Trump became President, Ms. Clifford went public with her account of this incident. With the assistance of a sketch artist, she prepared a composite sketch of the man from the parking lot, which was disseminated publicly.

Ms. Clifford's defamation claim is based on a tweet Mr. Trump published about the composite sketch. Shortly after the sketch was released, a Twitter user unrelated to the parties here tweeted the sketch juxtaposed with a photograph of Ms. Clifford's ex-husband, with a mocking message suggesting that the two men resembled one another. Mr. Trump retweeted this tweet, adding his own message: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

The two tweets appeared together as depicted below:

Ms. Clifford responded by filing this suit, alleging that Mr. Trump's tweet is defamatory….

"[S]tatements that are not verifiable as false are not defamatory. And even when a statement is verifiable, it cannot give rise to liability if the entire context in which it was made discloses that it was not intended to assert a fact." … [S]tatements that fail either test—"verifiability or context"—[are treated] as "opinion[s]." The determination of whether a statement is "reasonably capable of a defamatory meaning" focuses on how the statement would be interpreted by an "objectively reasonable reader."

Ms. Clifford advances two arguments for why the tweet at issue is defamatory. First, citing the Black's Law Dictionary definition of "confidence man," she argues that the use of the term "con job" implied that she had literally committed the crime of fraud. But it would be clear to a reasonable reader that the tweet was not accusing Clifford of actually committing criminal activity. Instead, as used in this context, the term "con job" could not be interpreted as anything more than a colorful expression of rhetorical hyperbole. Greenbelt Coop. Publ'g Ass'n v. Bresler (1970) (description of the plaintiff's negotiating position as "blackmail" could not reasonably be interpreted as having accused him of committing the crime of blackmail)….

Next, Ms. Clifford argues that the tweet is defamatory because it accused her of lying about having been threatened because of her participation in a magazine story about her relationship with Mr. Trump. We agree that this is a reasonable interpretation of the tweet, but conclude that it is not actionable.

Under Texas law [which applies to this case, presumably because Daniels is a Texas resident], a statement that merely interprets disclosed facts is an opinion, and, as noted, statements of opinion cannot form the basis of a defamation claim.. Viewed through the eyes of an objectively reasonable reader, the tweet here reflects Mr. Trump's opinion about the implications of the allegedly similar appearances of Ms. Clifford's ex-husband and the man in the sketch. Mr. Trump's reference to a "sketch years later of a nonexistent man" signals that the allegedly defamatory conclusion that followed—that Ms. Clifford was pulling a "con job" and "playing the Fake News Media for Fools"—plainly concerns the similarities between the sketch and the photograph of Ms. Clifford's ex-husband.

Because the tweet juxtaposing the two images was displayed immediately below Mr. Trump's tweet, the reader was provided with the information underlying the allegedly defamatory statement and was free to draw his or her own conclusions. Moreover, the tweet does not imply any undisclosed facts. Accordingly, the tweet, read in context, was a non-actionable statement of opinion. … "[T]here is no defamation liability for a statement of opinion when a report sets out the underlying facts in the publication itself, thereby allowing the listener to evaluate the facts and either accept or reject the opinion." …

Resisting this conclusion, Ms. Clifford argues that the tweet is reasonably construed as disputing not only her account of having been threatened over her cooperation with the magazine but also her broader allegation that she had an intimate relationship with Mr. Trump. Construed this way, Ms. Clifford contends that the tweet is actionable because a reasonable reader would appreciate that Mr. Trump had personal knowledge about whether there had in fact been a relationship, such that the tweet would be understood as a statement, based on undisclosed facts, that Ms. Clifford had fabricated her account of the relationship. We find this argument unpersuasive.

As an initial matter, in evaluating whether Ms. Clifford adequately pleaded a defamation claim, we are limited to the allegations in the complaint. The operative complaint specifically alleges that Mr. Trump's tweet was defamatory because it "falsely attack[ed] the veracity of Ms. Clifford's account of the threatening incident that took place in 2011." …

More importantly, even if this theory had been properly presented, we do not believe the tweet could be reasonably read as addressing Ms. Clifford's account of her relationship with Mr. Trump. The tweet did not reference the alleged relationship and instead focused on the sketch of the ostensibly "nonexistent man." This was plainly a reference to Ms. Clifford's account of having been threatened by a man in a Las Vegas parking lot. It follows that the statement in the following sentence that Ms. Clifford was pulling a "con job" and "playing the Fake News Media for Fools" was referring to her account of that same incident, not more broadly to other, unreferenced, statements by Ms. Clifford about the alleged relationship.

Because the complaint failed to plead an actionable false statement, the district court correctly granted the motion to dismiss.

Seems right to me.

 

NEXT: Faculty and Student Pledges

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  1. If no one else will ask it, I will, on a strictly non-partisan basis:

    How could the judge keep a straight face, when the sketch of the alleged perp and photo of the woman’s ex look as identical as Mr. Bean and Rowan Atkinson?

    1. I don’t know about that, but the do look like the same guy….

      And unless she’s alleging he raped her, whose business is it what they did in private more than a decade ago. They were both consenting adults, and….

      1. Say someone had a gay tryst with someone in 2006.

        If it was consensual and both were of age at the time, wouldn’t we all condemn anyone raising it now?

        1. Are you “asking for a friend?”

        2. You know, I posed the following hypothetical on a fundamentalist Christian blog: Suppose Buttigieg had gotten the Democratic nomination. Would all the social conservatives who were willing to overlook Trump’s sexual shenanigans have been willing to overlook Pete’s being gay.

          And the overwhelming response was: of course not; being gay is totally unforgivable in a candidate. The raw hypocrisy of the responses was just breathtaking.

          So no, I don’t think it’s a fair assumption that “we all” would condemn someone who brought up a gay tryst from 2006. Homophobes gonna homophobe; it’s what they do.

          1. You can’t reason with bigotry. It is a waste of time.

            Just wait for the bigots to be replaced by better people.

          2. I suspect you’re misinterpreting. It’s not his being gay, it’s his heresy when he says [my paraphrase] that his sodomy makes him closer to god, and that if you don’t accept it, you’re the one who is sinner.

            But then again, if he was a immigration patriot, I wouldn’t care if he buggered his husband on the front lawn of the White House.

            1. Assuming your paraphrase is accurate, by definition if you believe something to be true, you believe that others who disagree are mistaken. So I don’t really see how his “heresy” is different from any other theological dispute over, i.e., covenant theology vs. dispensationalism, or trinitarianism vs. Jesus only, or believer baptism vs. infant baptism, or any other theological dispute that has divided Christians for two millenia now. What he said is within the boundaries of mainstream Christianity, not that it should matter anyway since the Constitution forbids a religious test for public office. Most Episcopalians and Disciples of Christ, a significant chunk of Presbyterians and Catholics, and probably half of Methodists would agree with him; are they all heretics too?

              On the larger point though, you essentially acknowledge that whether a candidate’s sexual behavior is relevant depends on whether you otherwise agree with that candidate’s positions. You’re willing to give Trump a pass because you like his politics; you’re not willing to give the same pass to Clinton or Buttigieg because you disagree with theirs.

              And I disagree with you completely across the board. Either a candidate’s personal sex life is relevant or it is not, without respect to whether you like his judicial appointments.

              1. Christians have long since stopped shedding blood of Christians who disagree on theology. If you don’t like X or Y, then we say “start your own church”…and that’s what everybody does. And really, you should be able tell the difference between (what is today) some obscure theological issue to the average Christian and the mayor patronizing moral tone that he was purified in God’s eyes through his sodomy and that you were yourself a sinner if you didn’t love him for it.

                And you’re wrong on the logic. A candidate’s sex life matters to me as a voter….but it doesn’t matter *very much* compared to where they stand on policy issues. And if mayor Pete was pro 2nd Amendment and an immigration patriot, well, like I said, he’d could bugger whomever was willing and I wouldn’t care *very much*. Typical of a liberal to have a purity test.

                There is no candidate with views that align with your own, except, perhaps, if you’re the one running.

                1. But I don’t have a purity test. Excepting rape and sex with children, I don’t care about the sex lives of political candidates at all, whether I agree with their politics or not.

                  And how is what Mayor Pete told homophobes any different from what Jesus told the Pharisees?

                  And you’re right; Christians don’t kill other Christians over theology. Except for when they do, like Northern Ireland or East Africa. That they don’t in places like the United States has more to do with separation of church and state; give religion political power and you’d soon see religious conflict again.

                  1. If you think N. Ireland and the Troubles was theological, then you’re fairly ignorant on the subject. Separate religious and ethnic identities on one side or another of a low level conflict do not mean that said conflict is about the religion. And you’ll have to be more specific about who’s killing who in East Africa. That covers A LOT of territory.

                    You clearly do have a purity test…that you apply to other people’s opinion of politicians for them. Which is very, very funny.

                    As for what the good mayor said, and what Jesus told the Pharisees…you’ll have to be more specific. Jesus said a lot that is interpreted various ways. But what he didn’t do, was say anything related to sodomy being acceptable and that you are a sinner if you don’t accept it. Furthermore, sodomy is specifically called out, like going to a temple orgy or eating sacrificed meat, as an act that is wrong for Christians, in the NT letters.

                    1. It’s unintentionally ironic for you to call me ignorant about the troubles and then claim “separate religious and ethnic identities.” Nope, there was only one ethnicity; everyone on all sides of that issue was Irish. The only thing separating them was Catholicism vs. Protestantism.

                      As to East Africa, you can start with The Lord’s Army, a Christian terrorist organization that kidnaps children and turns them into child soldiers, then terrorizes villages populated by people with different theological views. Mercifully they appear to be dying out. Come to think of it, though, you don’t even need to go to Africa; there’s enough Christian terrorism right here at home. Google the Phineas Priesthood. Or Eric Rudolph. Or Paul Hill. Do they speak for all Christians? Of course not. But the point is there is plenty of blood still being spilled in the name of Jesus, though not as much as there used to be.

                      I don’t think “purity test” means what you think it means.

                      And here’s the thing about Christianity and homosexuality: As with any other issue, you can find Christians on all sides of the issue. There are plenty of pro-gay Christians out there, including the denominations I listed earlier. But being an anti-gay bigot is not justified by religion any more than any other bad behavior is justified by religion. If your religion tells you to treat other people badly, then the point is that you’re treating other people badly, and I don’t really care *why* you are treating other people badly. If you’re a racist, it doesn’t really matter if your racism is founded on eugenics or Genesis; the point is you’re still a racist. Ditto anti-gay prejudice. “But my religion” does not excuse otherwise bad behavior.

                    2. Eric Rudolph? Please, I actually read Between the Lines of Drift, and while a murderer, he did not kill over theological differences. Note, you’ve moved the goalposts. You’re describing nationalist or terrorist enterprises, particularly with Ireland. I said the days of Christians killing each other of theological differences is done. You’ve yet to show me Christians killing Christians because, say, they don’t believe in transubstantiation or the Pope as the Vicar of Christ.

                      Then tell me, since you’ve already said in so many words, what “purity test” means. I’m expecting a redefinition btw, so be internally consistent with what you’ve already wrote.

                      Stay on topic please. We were speaking about your opinion of Evangelicals and what you saw as hypocrisy. I responded to why they feel this way; that mayor Pete’s moralizing to them was particularly grating in tone and substance. You’ve then shifted to what you interpret Jesus’ words as meaning, etc. etc. etc. And yes, Christians today in some denominations welcome homosexuals…just like I said before…the way Christians are today, if you don’t like X or Y then they go start their own church.

                      I suspect you’re deeply offended that people don’t cherish homosexuality. Frankly, most of us don’t care where you stick your D, and if you think gay sex purifies you in God’s eyes, good on you then. But not agreeing with you isn’t homophobia or discrimination. Can’t people like you get that?

                    3. But you’re assuming that because there may also be other issues, such as nationalism, that it’s not also, properly speaking, a theological dispute. And it’s not an either/or. If you think your race is the chosen one because God said so, then it’s a theological debate, even though racism also enters into it.

                      I don’t see how you can call the Troubles anything but theological since the explicit reason for the conflict was Catholic vs. Protestant; that sounds pretty theological to me. If you bomb an abortion clinic, it’s basically a religious dispute over whether aborting a fetus is murder. The problem is that your definition of religion and religious conflict is far too narrow.

                      A purity test is when someone is unacceptable unless they meet a certain standard. I already said that I mostly don’t care about a politician’s sex life (excluding things like pedophilia), so I don’t have a purity test with respect to them. And with respect to having a purity test about “other people’s opinions of politicians for them”, believing that someone is wrong about something isn’t a purity test. Neither is pointing out hypocrisy.

                      And it is hypocrisy for (some) evangelicals to say that they would never vote for a homosexual even as they vote for someone with Trump’s sexual past (assuming it’s in the past). For the same reason it would be hypocritical for a church board to, i.e., refuse to allow a homosexual to teach Sunday School while at the same time allowing someone who is living in heterosexual sin with someone she’s not married to to teach Sunday School. The hypocrisy is in treating the two different, even though in both cases you have people whose lives are in violation of church teaching.

                      I’m not sure which of Mayor Pete’s comments you’re referring to, but assuming he could have been more tactful and diplomatic, that basic point stands. It’s also legitimate, in my view, to tell people who are anti-gay that they’re full of shit and you’re not interested in talking to them, but one can’t really do that when one is running for public office.

                      And perhaps you should tell me how you’re defining homophobia and discrimination.

          3. I personally don’t care about sexuality in a candidate, but to evangelicals there is a difference between someone who sinned once vs someone who is sinning constantly and is not planning to stop.

            1. I don’t think Trump only sinned once. And to the extent that he’s stopped, it’s more likely the result of diminished libido caused by old age than it is by anything even remotely approaching repentance. I think I’ve already shared my favorite joke here, but it’s worth a retelling: Guys my age watch porn for the same reason we watch football, which is to remind ourselves what we used to be able to do.

            2. And which category does Pres. Trump belong in, to your mind?

  2. Stormy is an obvious attention whore, willing to do almost anything to get few more bookings as a stripper or sell a few more porn videos.

    Look back at her “listening tour” of Louisiana as a prelude to a purported challenge to the then incumbent Senator, when she was not eligible to be on the ballot. It was a stunt promoted by the political opponents of the Senator ( which he richly deserved),

    She then collected a payday from Trump (or Cohen depending on who you believe) and then broke her NDA to get a bigger payday.

    Credibility is near ZERO, irregardless of what actually happened..

    1. At what point can we call her a whore in general?

      1. This is the Volokh Conspiracy. So long as you don’t make fun of conservatives, you can write anything you wish.

      2. Dr. Ed: Please don’t. Seriously, we know what she does for a living; you can approve or disapprove, but why get vulgar when criticizing your adversaries? Just stick with the substance.

        1. EV: Rahm Emannuel lost the distal half of his middle finger to a meat cutting machine. Obama cracked that the accident cost Emannuel half his vocabulary. You want to similarly limit Dr. Ed’s expression?

          1. If Dr. Ed’s digs were half as clever as Obama’s I would want to read them. They aren’t.

  3. Speaking of circuit courts, it looks like they are doing Flynn dirty yet again.

  4. I’m sure Trump has banged lots of chicks. Probably not as many as Clinton but he has definitely laid a lot of pipe in his day.

      1. All-time pipe-laying great.

      2. There is no competition there. That guy knocks them all out of the park. Biggest loser is Obama. He didn’t bang one chick while in the White House.

        1. “He didn’t bang one chick while in the White House.”

          Probably the wrong standard to cite if you are trying to help Trump, a guy whose green card special won’t sleep with him..

          1. lol. Woke scolds such as yourself don’t get much humor. In 8 years I am pretty sure that Obama and Michelle did the horizontal pokey at least once. The thing is, Michelle Obama looks like a tranny.

            1. Prof. Volokh: I give you your “civility standards” in action.

              1. Oh, how funny. The Rev crying for moderation.

                1. I do not want moderation. I want to illuminate hypocrisy.

                  1. Sure, sure. You squawk “hypocrisy!” in a shrill pipsqueak voice while pointing. That’s all you really want. Uh huh.

        2. Just to be clear, are you criticizing Obama for being faithful to his wife?

          1. No, he’s calling Michelle a man.

            Because he is a small and sad person.

          2. It’s a common joke that she looks like a man.

            Check our minute 2:03 of this “Epic Rap Battle of History” with Obama and Romney. It has 150+ million views: https://www.youtube.com/watch?v=dX_1B0w7Hzc

            (and yes, Obama has watched it).

  5. I hope this decision has brought Melania some of the peace and resolution she so desperately seeks.

    1. Well, you know, if you marry for money you’ll earn every penny of it.

      1. Not necessarily. Some young immigrants who resolve sketchy immigration issues by marrying a flabby old guy hit the jackpot when poor diet and sedentary ways cause him to drop dead.

  6. Who is footing her legal bills? That’s what I want to know.

    1. Probably Soros.

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