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Monday, August 3, 2020


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Ninth Circuit Affirms Dismissal of Lawsuit for Defamation by Daniels Against Trump

Opinion Says President’s Tweet Contained Hyperbole and Opinion


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday affirmed the dismissal of porn star Stormy Daniels’s defamation action against President Donald Trump, with a three-judge panel saying that his April 18, 2018 tweet accusing her of a “con job” was merely constitutionally protected “rhetorical hyperbole.”

The decision came in a memorandum opinion signed by Chief Judge Sidney Thomas and Judge Kim Wardlaw, both appointed by President Bill Clinton, and Judge Jacqueline H. Nguyen, placed on the court by President Barack Obama. The opinion upholds an order by District Court Judge S. James Otero of the Central District of California granting Trump’s special motion to strike.

Suing as “Stephanie Clifford, AKA Stormy Daniels,” the plaintiff alleged that she had an affair with Trump in 2006; in 2011, she agreed to supply information about their relationship to Touch Magazine; a few weeks after she so agreed, a man came up to her in a Las Vegas parking lot, made a threat against her daughter, and admonished Clifford:

“Leave Trump alone. Forget the story.”

(The magazine dropped its plan to publish the story after being threatened with legal action if it did.)


Above is President Donald Trump’s April 18, 2018 tweet commenting on a police artist’s sketch of the man porn star Stormy Daniels described who, she contends, threatened her with harm if she conveyed information to a magazine concerning her alleged affair with the then-presidential candidate. The tweet contains a graphic from a third party’s tweet displaying the sketch next to a photo of Daniels (whose true name is Stephanie Clifford) with her ex husband. The Ninth U.S. Circuit Court of Appeals held Friday that the president’s comments were not actionable.

Sketch Artist

Trump was elected president on Nov. 8, 2016. Clifford worked with a police sketch artist who produced a likeness of the man who had purportedly threatened her, and on April 17, 2018, she publicly released the rendering.

The following day, Trump tweeted:

“A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!”

His tweet contained a graphic disseminated by Twitter user “Deplorably Scottish” which contained the sketch of the man in the parking lot next to a photo of Clifford with her ex-husband, Glendon Carter. There was a resemblance of the man to her former spouse.

Not Defamatory

Friday’s opinion affirming the dismissal of Clifford’s action says the president’s tweet is not susceptible of a defamatory meaning. It explains:

“[C]iting 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….Because the tweet could not reasonably be read as asserting that Ms. Clifford committed a crime, this theory of defamation is not viable.”

Clifford also asserted that the tweet implied she had lied about having been threatened.

“We agree that this is a reasonable interpretation of the tweet, but conclude that it is not actionable,” the opinion says, elaborating:

“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.”

Affair With Trump

The plaintiff also asserted that the tweet implies she is lying about having had an affair with Trump. The opinion responds:

“[W]e 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.”

The “alleged relationship” prompted a $130,000 payment to Clifford prior to the 2016 election for signing a nondisclosure agreement concerning the purported affair, an agreement she later violated, declaring it to be invalid, and leading to other litigation.

Texas Law

Otero dismissed the action under the Texas anti-SLAPP statute. Clifford brought the action on April 30, 2018 in the U.S. District Court for the Southern District of New York based on Trump being a domiciliary of New York; she’s domiciled in Texas.

The court in New York transferred the case here.

A New York court, Otero said, would apply the Texas statute. While he, also, did so, he noted that he “borrows from courts’ analysis of California’s anti-SLAPP statute” Code of Civil Procedure §425.16, because it was one of the earliest statutes of that nature and served as a model for other states’ provisions.

Otero found that protected speech was involved but that Clifford could not show a probability of prevailing on the merits.

The question addressed by the Ninth Circuit whether a state anti-SLAPP statute should be applied in federal court. The opinion notes that the Texas-based Fifth Circuit has found that the Texas statute should not be utilized.

“We have long held that analogous procedures in California’s anti-SLAPP law apply in federal court,” the opinion notes, observing that the Texas statute “is indistinguishable from California’s law in all material respects.” It says the Ninth Circuit is bound by its own precedents.”

In finding that, under Texas law, Trump’s tweet was not susceptible to a defamatory meaning and that it contained protectible opinion, the court did not apply precepts that were distinctively Texan.

 ‘Political Adversary’

In his order dismissing Daniels’s action, Otero said:

“…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.”

A footnote to Friday’s Ninth Circuit opinion remarks:

“We… need not, and do not, address the district court’s conclusion that Ms. Clifford presented herself as a ‘political adversary’ of Mr. Trump.”

The case is Clifford v. Trump, 18-56351.

 Daniels’s attorney, Clark Brewster, said Friday:

 “Ms. Clifford has directed us to proceed to seek further review by the 9th Circuit, en banc. If that effort fails we will likely seek review by the Supreme Court.”


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