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Trump Beat Stormy Daniels' Defamation Claim With a Law Aimed at Rich Bullies Like Him

The president, who routinely threatens to sue people for saying things he does not like, deployed an anti-SLAPP law in his own defense.

AAPimages / NewcomAAPimages / NewcomDonald Trump, who is notorious for trying to intimidate his critics by threatening to sue them, this week used a law aimed at discouraging that sort of abuse to defeat a defamation claim. In dismissing Stormy Daniels' defamation lawsuit against Trump, U.S. District Judge S. James Otero upheld the First Amendment rights of a man who routinely attacks freedom of speech.

Daniels, a.k.a. Stephanie Clifford, says she had an affair with Trump in 2006. She sued him last spring after the president dismissed her report that a stranger had threatened her in 2011, when she was planning to discuss the affair with the press. According to Clifford, the man approached her in Las Vegas and threatened to hurt her daughter, saying, "Leave Trump alone. Forget the story." In April, when Clifford released an artist's rendering of the man, the president tweeted, "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!" That tweet was the basis for Clifford's defamation claim.

Clifford, who is from Texas, initially filed the lawsuit in New York, Trump's home state, but it was moved to California, where another case pitting Clifford against Trump (involving the enforceability of a nondisclosure agreement that his lawyer had her sign) is pending. Based on New York's choice-of-law rules, Otero, a federal judge in Los Angeles, concluded that Texas law should apply in the defamation case. Trump therefore benefited from the Texas Citizens Participation Act, a 2011 law that is designed to protect a defendant who faces a "strategic lawsuit against public participation" (SLAPP).

That sort of lawsuit, which aims to punish and deter constitutionally protected speech, is a Trump specialty. The president has a long, amazingly petty history of using the legal system against people who offend him.

In 1984, for instance, Trump sued Chicago Tribune architecture critic Paul Gapp for calling a Manhattan skyscraper proposed by Trump "aesthetically lousy" and "one of the silliest things anyone could inflict on New York or any other city." The thin-skinned developer demanded $500 million in compensation for those insults, which seemed like a lot until he sought 10 times as much—$5 billion—in a 2006 lawsuit against Tim O'Brien, a financial journalist who had dared suggest that Trump was not worth as much as he claimed. Although Trump lost both of those cases, he later told The Washington Post he got what he wanted from his suit against O'Brien: "I did it to make his life miserable, which I'm happy about."

During his presidential campaign, Trump or his lawyers threatened to sue a website for selling anti-Trump T-shirts; the National Hispanic Media Coalition for condemning his anti-immigrant rhetoric; the Club for Growth, Ted Cruz, John Kasich, and a Jeb Bush supporter for criticizing him in TV ads; Tony Schwartz, his former ghostwriter, for saying negative things about him in an interview with The New Yorker; The Daily Beast for reporting an ex-wife's abuse allegations; the Associated Press for reporting on one of his business disputes; The Washington Post for revisiting the failure of Trump's Taj Mahal casino; and The New York Times for reporting the claims of women who said Trump had kissed or groped them without their consent. Trump said that if elected he would make such lawsuits easier to win by "open[ing] up those libel laws" (something the president does not actually have the power to do).

The Texas anti-SLAPP law that Trump used in his own defense, by contrast, makes it harder for rich bullies like Trump to punish people who say things they don't like. The law allows a defendant to seek quick dismissal of an unfounded claim and recover legal fees from the plaintiff. Once the defendant shows by a preponderance of the evidence that the lawsuit is based on "a communication made in connection with a matter of public concern," the plaintiff has to establish "by clear and specific evidence a prima facie case for each essential element of the claim." The defendant can still win dismissal of the case if he "establishes by a preponderance of the evidence each essential element of a valid defense."

In this case, Judge Otero concluded that Trump's tweet easily met the first test, while Clifford's allegations failed the second test, primarily because the tweet was constitutionally protected "rhetorical hyperbole" that Trump deployed as a defense against Cliffords' charges:

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.

Whether or not you agree with Otero's analysis, his warning against unilateral disarmament in public discourse must be puzzling to someone who values the First Amendment only when it benefits him.

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  • Just Say'n||

    Today, woketarians like defamation lawsuits. Tomorrow will be different, of course, depending on the principal

  • Jessi||

    Reason has a bad case of TDS.

  • Wise Old Fool||

    Calling out Trump on hypocrisy is TDS, ah gotcha!

  • Fancylad||

    Jacob isn't even pretending anymore.

  • Last of the Shitlords||

    Yep. Reason is becoming an enemy of America.

  • Wise Old Fool||

    Saying negative things about Trump now makes you the enemy of America? Gotcha.

  • Azathoth!!||

    I remember when we'd all gather at Reason to watch them cry their salty, hammy tears.

    Now, Reason is the source.

  • AER1972||

    Who is this silly excuse for a journalist? What happened to Reason? It has become the silly social justice warrior's forum. How pathetic!

  • Tony||

    Sucking Republican cock is not the same thing as being a libertarian. Ask Stormy Daniels.

  • loveconstitution1789||

    Tony would know about sucking cock. He sucked Hillary's cock for decades.

  • Tony||

    I'm not threatened by strong women. Or women in general. Or science. Or books.

  • Fancylad||

    What do you mean by science Tony? Or books?

  • Red Tony||

    Let me correct Past Me's statement.

    "I don't interact with strong women. Or women in general. Or science. Or books."

    There. That fixed it.

  • JesseAz||

    Tony, you've already proven you're scientifically illiterate. Just stop. It's embarrassing.

  • XM||

    Clinton, like Trump, lived on her family's (on her husband) name for decades.

    The old woman can't even drive and the rigors of the election nearly broke her down physically. What strength?

  • operagost||

    I read that post in Cartman's voice.

  • TrickyVic (old school)||

    ""his warning against unilateral disarmament in public debates must be puzzling to someone who values the First Amendment only when it benefits him.""

    That almost the entire voting public.

  • BYODB||

    Yeah, Trump is normal in that view; it is we who are Abby Normal.

  • Diane Reynolds (Paul.)||

    James Otero upheld the First Amendment rights of a man who routinely attacks freedom of speech.

    Unfortunately, that's how freedom of speech works.

  • sk8rjason||

    I would say fortunately, even though Trump is a blowhard.

  • Longtorso, Johnny||

    Ha ha.

  • loveconstitution1789||

    Trump Beat Stormy Daniels' Defamation Claim With a Law Aimed at Rich Bullies Like Him

    While I agree that summary judgment is abused to prematurely dismiss lawsuits, the USA also has a huge problem with clearly frivolous lawsuits. Especially when financed by sketchy political groups who use Plaintiffs as the scapegoat.

    Stormy Daniels didnt pay for this Defamation action to be filed which can cost $400 in federal court.

  • loveconstitution1789||

    The media loves to use Anti-SLAPP summary judgment defenses against Plaintiffs who are attacked by media lies.

    Sullum, try discussing the big picture about Anti-SLAPP laws (Strategic Lawsuits Against Public Participation), who pushed for those to be passed, and what entities use them successfully.

    The Lefties were using this lawsuit to get Trump into a deposition. Admit that and then I would have some respect for your people.

    Stormy Daniels violated a NDA agreement and the Lefties have no problem disregarding what contract law entails.

    Save your fake outrage for some gullible Lefties.

  • Homple||

    I thought enforcing contracts was one of the few things libertarians want the government to do. Have I been wrong about this?

  • Just Say'n||

    "If you're not woke, you're not a libertarian or something"

    - Ayn Rand maybe, I don't know

  • Just Say'n||

    "Contracts are literally Hitler, depending on who the principals to the contract are"

    - Lysander Spooner perhaps, I guess

  • Just Say'n||

    "Let free speech rights be selectively enforced and dependent upon the principal's own views on free speech. It is in this selective and hypocritical manner that we shall demonstrate to the world that we truly are no alternative to the prevailing wisdom of the day. Get woke."

    - Karl Hess probably or something

  • Homple||

    ^^^Ha! The man knows his sources well.

  • Kivlor||

    You thought very wrong. All you have to do is look at the libertarian position on divorce.

  • Homple||

    I do have trouble following libertarian principles, as presented by Reason anyway. Just when I think I understand, they write something that disturbs my mind's hobgoblin.

  • Kivlor||

    That's because with Reason its imperative you follow the principals. Easy mistake to be concerning yourself with principles.

  • loveconstitution1789||

    Clifford, who is from Texas, initially filed the lawsuit in New York, Trump's home state, but it was moved to California, where another case pitting Clifford against Trump (involving the enforceability of a nondisclosure agreement that his lawyer had her sign) is pending. Based on New York's choice-of-law rules, Otero, a federal judge in Los Angeles, concluded that Texas law should apply in the defamation case. Trump therefore benefited from the Texas Citizens Participation Act, a 2011 law that is designed to protect a defendant who faces a "strategic lawsuit against public participation" (SLAPP).

    Another point you forgot to bring up since you were making your ridiculous point about how Stormy got shafted on venue and applicable state law, California also has Anti-SLAPP rules for defamation cases.

    I would also bet that Trump would be considered a resident of 1600 Pennsylvania Avenue for the next 6 years, which is D.C., not New York.

  • FlameCCT||

    IIUC Trump would have won in NY, CA, DC, or TX under Anti-SLAPP laws.

  • Dillinger||

    >>>upheld the First Amendment rights of a man who routinely attacks freedom of speech.

    misunderstanding rights not same as not having rights.

  • Homple||

    The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

    ...H. L. Mencken

  • loveconstitution1789||

    +1

  • Ben of Houston||

    I recall a quote from a Youtuber mocking the concept of a "Free Speech" rally.

    Since free speech is about letting everyone, no matter how vile, speak, a Free Speech conference should include everyone from Klansmen to Flat Earthers to NAMBLA. Any Free Speech Conference worth the name would include so many horrible people that no one in their right mind would ever go to it.

  • Derp-o-Matic 6000||

    Oh my God, it's almost as though you can invoke a law currently in force while still advocating for a change!

  • Frank White||

    Ayn Rand something something welfare something something...

  • Dillinger||

    you were my favorite second baseman.

  • Mongo||

    Horseface?

    It's unseemly to drag Celine Dion into this, Mr. Trump.

  • Just Say'n||

    I bet Sarah Jessica Parker had a rough morning wondering why the president was talking about her on Twitter

  • Mongo||

    I was tryin' to remember the name of that chick! :D

  • Dillinger||

    she looks like a foot. ~~Peter Griffin

  • Just Say'n||

    Meanwhile, while Miranda was getting ridden by a stallion, I had my own equestrian problems. I was trying to understand why the president of the United States had insulted me on Twitter, without provocation.

    "Horse face, eh. I'll show him. I'll get another boob job to distract from my sub par face."

  • Diane Reynolds (Paul.)||

    Although Trump lost both of those cases, he later told The Washington Post he got what he wanted from his suit against O'Brien: "I did it to make his life miserable, which I'm happy about."

    Funny that.

  • John||

    The same people who today claim the right to run any Republican politician or public figure out of public life by making it impossible for them to so much as go out to a restaurant are now shocked that anyone would use litigation to make someone miserable and deter them from attacking them politically.

    It is as always different when they do it.

  • Derp-o-Matic 6000||

    Man, if only that were in any way a foreseeable consequence...

  • John||

    If only someone would have warned them.

  • Last of the Shitlords||

    Just destroy all the progtards and be done with them.

  • BYODB||

    That's Trumps way of agreeing with our old motto of the process is the punishment.

  • Longtobefree||

    Horseface, horse's ass; can't we leave poor Mr. Ed out of politics?

  • John||

    This is a now low in stupid. The biggest proponent for Anti Slapp laws is none other than Reason board member Ken "Dopehat" White himself. According to White, this law is only used by little old ladies in tennis shoes who are being sued for defimation by big mean government officials who don't like being criticized.

    Now we find out that these laws are just designed to benefit rich bullies. Has anyone informed Dopehat of this?

    Beyond that, Trump was the defendent in this case. Saying that a defendent in a liable case is the one using the suit to supress speech is a unique interpretation of libel law to say the least. The whole point of this article seems to be that since Trump is a big meanie and Sullumn doens't like him, he is somehow not entitled to the same treatment under the law as everyone else. Pathetic is too weak of a word for this drek of an articlee.

  • loveconstitution1789||

    Reason writers just cannot help themselves twisting logic to fit the narrative.

  • Truthteller1||

    It's embarrassing for Reason to publish click bait bullshit like this wretched opinion piece.

  • Truthteller1||

    Sounds like this sniveling millennial needs his mommy.

  • bevis the lumberjack||

    It would seem that in this particular case that Daniels and her attorney were the censorious bullies.

  • Rev. Arthur L. Kirkland||

    How did they attempt to censor Trump? Are you trying to remember something from a discount homeschooling outline?

  • bevis the lumberjack||

    They tried to punish him financially because of something he said, imbecile. You're about 8% as smart as you think you are.

  • FlameCCT||

    Damn! How generous to give him/her/it 8%.

  • Echospinner||

    The lawsuit never had a chance. It was a publicity stunt.

  • Rev. Arthur L. Kirkland||

    A Republican judge helped Pres. Trump in court (subject to appeal) but can't prevent Stormy Daniels from informing the public that Donald Trump has a tiny dick and doesn't know how to use it.

    Stormy should publicly challenge Melania to vouch for Trump's little pecker. I would expect Melania to defend her spouse's honor with every bit of vigor Ted Cruz displayed in defense of Mrs. Cruz after she was called a hideous pig.

    We may learn that Trump wasn't cheating on Melania so much as Melania -- who probably had the experience that would naturally cause disappointment -- told him to keep that twiglet away from her, encouraging him to take it elsewhere, with anyone who would have him.

    Republican-conservative family values.

    Carry on, clingers.

  • John||

    Cry on loser.

  • Henry Buttal||

    Load grade Spam AI trying to pass off as intelligent being. Carry on bit-bucket...

  • DPICM||

    Reminds me of an old joke:

    How do you know if a woman had an orgasm?

    Who cares?

    The tiny dick insult is signal that a woman is defeated. Yes, tiny dick. That's why a professional whore kept fucking him for months, for free.

  • Last of the Shitlords||

    Oh Arty, have you started counting down the days yet? I mean, until your kind push too far and the rest of America decides to cleanse itself of you and your treasonous friends.

    Your last minutes will be filled with agony and terror.

  • Dizzle||

    How small could it be if stormy didn't charge no fee? She liked that d.

  • Number 2||

    As far as I am concerned, Trump defeated Michael Avenatti. From that perspective, this lawsuit is like watching Godzilla fight Mothra.

  • JeremyR||

    Mothra actually has a winning record vs Godzilla.

  • sharmota4zeb||

    The vice presidential candidate normally says the controversial stuff while the presidential candidate is calm and collected. How about Stormy Daniels on the top of the ticket and Arvin Vohra on the bottom in 2020? Think about guys, Stormy Daniels works in the media industry and has a long history of professionally capturing the attention of audiences who don't have to worry about encountering the police if they skip her performance ... unlike that certain LP candidate in New York State. ;)

  • Eddy||

    As long as they don't nominate that Leslie Nielsen look-alike.

  • Rockabilly||

    Rev. Arthur L. Kirkland is a long time pentecostal minister and certified snake handler.

    He claimed to rid Hillary Clinton of demons.

  • gphx||

    'Trump Beat Stormy Daniels' Defamation Claim With a Law Aimed at Rich Bullies Like Him'

    I'll take 'Things a pussy would say' for $500, Alex.

  • Naaman Brown||

    I read the article Rebecca R. Ruiz, "Actress's Defamation Lawsuit Against Trump Is Dismissed", The New York Times, A15, 16 Oct 2018.

    And I filed the PDF of the Clifford-v-Trump-Order in my POLITICS folder along side the PDF of the Declaration of Julie Swetnick.

    My takeway is that the 30 Apr 2018 complaint against Trump's tweet of 18 Apr 2018 was more Mike Avenatti than Stormy Daniel, just as the Julie Swetnick 25 Sep 2018 Declaration was more Mike Avenatti than Julie Swetnick (jeez Swetnick could not stay on script during her 1 Oct interview with Kate Snow). I suspect this has always been more Mike Avenatti (and whoever is backing him against Trump) than it has been Stormy Daniels or Julie Swetnick.

  • Mickey Rat||

    How dare Trump think that the law applies equally to him as to any other person.

  • operagost||

    A stranger posed for a photo with her, then threatened her?

  • gphx||

    'Twump is a buwwy!'

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