Ken White and Marc Randazza from Pope Hat have some thoughts about Stepanie Clifford’s defamation suit against Mr. Trump. White and Randazza are mightily versed in Free Speech law, and it is their shared opinion, more or less, that her lawyer is a dope.
Mr. Trump tweeted. Ms. Clifford (Stormy Daniels) is claiming damages. But there is a high probability that the court will not just toss the case, but that Daniels will be on the hook for court costs and attorney fees.
Let’s start with the basics. Only provable statements of fact can be defamatory. Insults, hyperbole, overheated rhetoric, pure opinion, and other things not reasonably interpreted as a statement of fact cannot be defamatory. One of the earliest questions in this case — and likely the one the President’s lawyers will attack when they file a motion to dismiss the defamation suit — is whether Donald Trump’s tweet can be taken as a provable statement of fact, as opposed to mere bluster, hyperbole, insult, and rhetoric.
As Mr. White notes, “The context is (a) this President and (b) Twitter.”
Trump has already won a case in New York in which political strategist Cheryl Jacobus accused him of defamation via Twitter. The Court,
“…dismissed the lawsuit against President Trump, finding that the tweet could not be taken as a statement of provable fact, but was hyperbole and political opinion.”
Daniels problem is that this is no different.
Her second problem is that,
Stormy Daniels is from Texas. Texas has a strong anti-SLAPP statute. And some federal courts will apply the anti-SLAPP statute of your state of origin if you file a defamation claim in federal court elsewhere. My friend and First Amendment badass colleague Marc Randazza pointed this out to me — in fact, Marc says, federal courts in the Second Circuit (which includes the court where Daniels filed this case) have applied anti-SLAPP laws from the home states of plaintiffs to cases there.
That will cost her more than $130,00.00, so I hope all this upsurge in media interest by Trump haters is paying well.
There is also the hit to her credibility, such as it is, losing what the media and internet have turned into a high profile case. One where she doesn’t technically have much to stand on.
As I pointed out in the title. Her lawyer, who is a media whore, is an idiot for walking her into the bright lights of Drump Derangement Theater. Whatever else people may think about The Donald bagging a porn star in decades past – even though both parties have repeatedly denied any intimate association until it recently presented itself as a revenue stream for an aging “actress” – the first Amendment leans heavily in Mr. Trumps favors in this case.
Daniels is probably going to get screwed by the courts, and it’s her big mouth lawyers fault.