Trump Uses First Amendment To Avoid Liability In Defamation Action

Kelley Drye & Warren LLP

October 15, 2018 – Blanketing Himself In First Amendment Protections, Trump Wins Dismissal of Stormy Daniels’ Defamation Suit

October 16, 2018 – Prominent Nonprofit Sues Trump For Using His Presidential Powers To Violate The First Amendment

On October 15, 2018, U.S. District Judge James S. Otero of the Central District of California issued an order dismissing the defamation case brought by adult film star Stephanie Clifford, a.k.a. Stormy Daniels (“Daniels”).  The case concerns President Trump’s tweet about the allegedly anonymous man who threatened Ms. Daniels to keep quiet about her affair with Mr. Trump.  The Court found that Mr. Trump’s tweet was an exercise of his right of free speech under the First Amendment, dismissed the case and awarded Trump his legal fees.  The case is Stephanie Clifford v. Donald J. Trump, Case 2:18-cv-06893 SJO (FFMx) (C.D. Cal.).

The Tweet

Daniels alleges that in May of 2011, she agreed to cooperate with In Touch Magazine in connection with an article about her past relationship with Trump.  Daniels agreed to speak to the magazine after her ex-husband approached In Touch without her approval.  As alleged in her complaint, a few weeks after agreeing to speak to the publication, a man approached her in Las Vegas, Nevada, threatening her and her daughter to “Leave Trump alone.  Forget the story.”  After Trump was elected President on November 8, 2016, Daniels worked with a sketch artist to render a sketch of the person who had threatened her in 2011.  She released the sketch publicly on April 17, 2018.  The next day, on April 18, 2018, Trump, using his personal Twitter account (@RealDonaldTrump), posted the following tweet:

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

Daniels Sues Trump For Defamation Based On Trump’s “Con Job” Tweet

In response to his tweet, Daniels filed a complaint for defamation against Trump on April 30, 2018 in the Southern District of New York. Daniels alleged that Trump’s “tweet attacks the veracity of her account of the threatening incident that took place in 2011” and “suggests that she is falsely accusing an individual of committing a crime against her.”  She contended that Trump meant to convey that she “is a liar, someone who should not be trusted, that her claims about the threatening encounter are false, and that she was falsely accusing the individual depicted in the sketch of committing a crime, where no crime had been committed.”  On this basis, Daniels alleged that Trump’s tweet was false and defamatory, and constituted defamation per se because it charged her with committing a serious crime.  

On August 8, 2018, the parties agreed to transfer the case from the Southern District of New York to the Central District of California. On August 27, 2018 Trump filed a motion to dismiss the complaint pursuant to the applicable anti-SLAPP statute. Welcoming the First Amendment protections that both the anti-SLAPP statute itself and judicial precedent provide, Trump argued, among other things, that his tweet was a non-actionable opinion.

Luckily for Trump, the district court recognized that the anti-SLAPP statute seeks to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”

The Court Determines The Tweet Constitutes Non-Actionable Rhetorical Hyperbole, Dismisses The Complaint And Awards Trump His Legal Fees As Required By The Anti-SLAPP Statute

The Court easily determined that the complaint related to Trump’s exercise of his right of free speech and agreed with Trump that his tweet constituted “rhetorical hyperbole” which is protected by the First Amendment.  The Court also held that Trump sought to use language to challenge Ms. Daniels’ account of her affair and the threat that she purportedly received in 2011, and that the U.S. Supreme Court has held that a published statement that is “pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage” cannot constitute a defamatory statement.” See Milkovich v. Lorain Journal Co., 497 U.S. 1, 32 (1990).  Relying on judicial precedent regarding the First Amendment, the Court explained that even statements such as “ripping off” and “sleazy” constitute non-actionable opinion.

The Day After Trump Wins Under The First Amendment, Nonprofit Sues Trump For Allegedly Using His Presidential Powers To Violate The First Amendment

Trump’s victory on First Amendment grounds stands in stark contrast to his public criticisms of an expansive right to free speech. Trump has issued numerous tweets condemning the actions of journalists, which many argue constitutes an effort to impinge the rights of the media and freedom of speech.  With repeated “Fake News” soundbites and tweeting about changing libel laws, Trump sure seemed to enjoy the protections of the First Amendment when he was the defendant in a defamation action.

Nevertheless, the day after the Court dismissed Daniels’ defamation case on First Amendment grounds, on October 16, 2018, Pen American Center, Inc.—a prominent nonprofit organization that works to defend free expression—filed a complaint against President Trump in the Southern District of New York.  Plaintiffs allege that, acting in his official capacity as the President of the United States, Trump intended to stifle exercise of the constitutional protections of free speech and a free press, and therefore violated the First Amendment and his oath to uphold the Constitution.  The complaint alleges that Trump has issued retaliatory directives to officials in Trump’s Administration and public threats to use his government powers against news organizations and journalists who have reported on his statements, actions, and policies in unfavorable ways, including the following:

  • Trump allegedly demanded that Jeff Bezos, Amazon, and The Washington Post, which Bezos owns personally, be punished because of The Post’s coverage of him. This includes reports that Trump allegedly issued an executive order directing the U.S. Postal Service to double Amazon’s delivery rates.
  • Trump allegedly has threatened CNN and its parent company, Time Warner.
  • Trump allegedly regularly threatens to withdraw the White House press credentials of individual reporters.
  • Trump allegedly has threatened to challenge broadcast licenses for television stations owned by or carrying NBC and other networks.

Plaintiffs argue that Trump has First Amendment rights and is free to criticize the press, but he is not free to use the power and authority of the United States government to punish and stifle free speech.  Plaintiffs contend that Trump has directed his threats and retaliatory actions at specific outlets whose content and viewpoints he views as hostile.  As a result, journalists who report on the President seek a  remedy for what they allege is the President’s unconstitutional actions aimed at suppressing speech.  Specifically, plaintiffs seek an order (a) declaring that Trump ’s retaliatory acts violate the First Amendment, and (b) enjoining “Trump from directing any officer, employee, agency, or other agent or instrumentality of the United States government to take any action against any person or entity with intent to retaliate against, intimidate, or otherwise constrain speech critical of him or his Administration.”  The case is Pen American Center, Inc. v. Donald J. Trump, in his official capacity as President of the United States, Case: 1:18-cv-09433 (S.D.N.Y).

Given his arguments in Stephanie Clifford v. Donald J. Trump, it appears that President Trump is a big fan of the First Amendment.  His arguments in response to the Pen American Center, Inc. v. Trump case, wherein he is flatly accused of stifling First Amendment protections, will be interesting to follow.  Stay tuned.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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