Will Donald Trump Support A Federal Anti-SLAPP Law Now That It's Helped Him Win Stormy Daniels' Defamation Suit?

Every few months, it seems, President Trump trots out some nonsense about how our current defamation laws are unfair and he promises to open them up. It keeps happening. And it's not surprising because Trump himself has threatened defamation lawsuits many times, and even occasionally filed an actual defamation lawsuit, such as the one against Tim O'Brien, which Trump lost completely -- though, tellingly he later admitted that he felt like he succeeded in forcing O'Brien to spend money in court:

"I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I'm happy about.'"

Of course it's this kind of thinking that is the reason why we support stronger anti-SLAPP laws and, in particular, a federal anti-SLAPP law to protect people from having to deal with potentially life-ruining defamation lawsuits from those better positioned to handle them. Of course, this is also why we figure that any movement on a federal anti-SLAPP law is dead in the water while Trump is still President. Given his comments on moving libel laws in the other direction, it seems unlikely he'd ever sign such a bill.

But... Trump just won a defamation lawsuit filed by Stormy Daniels, and it was because of a strong anti-SLAPP law in Texas, that might now allow him to go after legal fees as well. Of course, there have been moments when Trump has recognized that "opening up our libel laws" might come back to bite him. As he said in a NY Times interview, when asked about opening up libel laws:

Actually, somebody said to me on that, they said, 'You know, it's a great idea, softening up those laws, but you may get sued a lot more.' I said, 'You know, you're right, I never thought about that.' I said, 'You know, I have to start thinking about that.'

And now that Trump has successfully used an anti-SLAPP law to get out of a lawsuit, perhaps he'll be a bit more open to the idea of anti-SLAPP laws as well.

This particular lawsuit, brought by Stormy Daniels, represented by Michael Avenatti, was always an incredibly stupid lawsuit that Trump was obviously going to win. There are a bunch of legal disputes and arguments among these two, but just to clarify, back when Daniels was on 60 Minutes, she claimed that she had agreed to tell her story of her affair with Trump back in 2011, but was allegedly threatened in a Las Vegas parking lot:

Then in 2011, after she had agreed to tell her story to In Touch magazine for $15,000, Daniels said she was threatened by a man in a Las Vegas parking lot who warned her to "Leave Trump alone. Forget the story."

Sometime after this, Stormy Daniels had a sketch artist sketch the man she said approached her in Las Vegas. Some Trump supporters noted what they believed to be an uncanny similarity between the eventual sketch and Daniels' ex-husband, and tweeted this. Trump then retweeted one such tweet along with the following text: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

And it's that tweet that Daniels/Avenatti sued over. Again, this was clearly going nowhere. That tweet is not at all defamatory under the 1st Amendment. In his defense, Trump, who was represented by Charles Harder*, filed an anti-SLAPP motion, arguing that Trump was protected under Texas' anti-SLAPP law, that the case should be dismissed, and that Trump should be awarded attorneys' fees. And the court easily agreed.

* Big disclaimer here: Harder is at this moment representing a plaintiff in a still ongoing lawsuit against me personally (as well as Techdirt), claiming defamation, and in which we made a motion using California's anti-SLAPP law. In the Trump case, however, it is Harder/Trump making use of anti-SLAPP laws (in this case, Texas') and I agree with Harder and Trump that this claim was a SLAPP suit and am glad the case was dismissed.

In their motion for the anti-SLAPP dismissal, Harder argued that Trump's tweet was clearly protected by the First Amendment, and thus the anti-SLAPP law should lead to the dismissal of the case. Frankly, I think Harder makes a very strong argument here:

Here, the Comment nowhere implies that PresidentTrump has any special information or insight as to what did or did not happen in aLas Vegas parking lot in 2011. Rather, he gives an opinion that he does not findPlaintiff's account credible. This is constitutionally-protected and therefore nonactionable,especially because the Comment arose from a public dispute between amajor politician and one of his adversaries.

It does not matter that the President used strident language ("nonexistent,""con job," and "fake news") in expressing his opinion doubting the veracity ofPlaintiff's allegation rather than using more genteel terminology. Rhetoricalhyperbole is not actionable as defamation. Neely v. Wilson, 418 S.W.3d 52, 83-84(Tex. 2013). Courts throughout the United States have routinely held thatterminology similar to that used by the President is constitutionally protected opinionand non-actionable. See e.g., McCabe v. Rattiner, 814 F.2d 839, 843 (1st Cir. 1987)("scam" not defamatory); Oilman v. Evans, 750 F.2d 970, 987 (D.C. Cir. 1984) (enbanc) (political columnist labeling a political figure a "Marxist" not defamatory);Letter Carriers v. Austin, 418 U.S. 264, 282-83 (1974) (use of term "scab" in labordispute not defamatory); Buckley v. Littell, 539 F.2d 882, 893-94 (2d Cir. 1976)(labeling political writer a "fascist" not defamatory); Greene v. State, 21 So.3d 348,352 (La. App. 2009) (labeling state employee "pathological liar" not actionable).

Any finding by the Court that the Comment has a defamatory meaning and isnot protected opinion could have a chilling effect on political debate throughout theUnited States forever. Politicians frequently express their opinions about theirpolitical adversaries, often in strident and blunt terms. In 1964, for instance, LyndonJohnson ran an advertisement that implied his opponent, Barry Goldwater, wouldstart a nuclear war. John Kennedy campaigned against incumbent Vice PresidentRichard Nixon in 1960 based on claims of a "missile gap" with the Soviet Union thatturned out to be grossly misleading. Bill Clinton allegedly misstated the budget deficit in his 1992 campaign against George H.W. Bush. None of these statementswere anything more than opinions, and none could or should form the basis of adefamation suit.

Indeed, since the founding of our republic, politicians have often expressedtheir opinions by branding their opponents as "liars." Doing so does not subjectevery such politician to a defamation claim. President Trump himself has expressedhis opinions regarding multiple adversaries, sometimes referring to his opponents bycolorful names such as "Lyin' Ted" and "Crooked Hillary." A defamation standardthat turns typical political rhetoric into actionable defamation would chill expressionthat is central to the First Amendment and political speech.

It's a strong argument. And the judge easily agreed, noting that the tweet was clearly rhetorical hyperbole:

The Court agrees with Mr. Trump's argument because the tweet in question constitutes "rhetoricalhyperbole" normally associated with politics and public discourse in the United States. The FirstAmendment protects this type of rhetorical statement.

"It is well settled that 'the meaning of a publication, and thus whether it is false and defamatory,depends on a reasonable person's perception of the entirety of a publication and not merely onindividual statements." See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (quoting Turnerv. KTROK Television, Inc., 38 S.W. 3d 103, 115 (Tex. 2000)). To assess whether a statement is"rhetorical hyperbole," this Court looks to the statement "as a whole in light of the surroundingcircumstances and based upon how a person of ordinary intelligence would perceive it."

Furthermore:

The instant case is similar to Rehak in that Mr. Trump, as President, made a hyperbolic statementagainst a person who has sought to publicly present herself as a political adversary to him. Infilings before this Court, Ms. Clifford has challenged the legitimacy of Mr. Trump's victory in the2016 Presidential election. Mr. Trump's tweet served as a public rejoinder to allegations made byPlaintiff. If this Court were to prevent Mr. Trump from engaging in this type of "rhetoricalhyperbole" 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 constitutean action for defamation. This would deprive this country of the "discourse" common to the politicalprocess. In short, should Plaintiff publicly voice her opinions about Mr. Trump, Mr. Trump isentitled to publicly voice non-actionable opinions about Plaintiff. To allow Plaintiff to proceed withher defamation action would, in effect, permit Plaintiff to make public allegations against thePresident without giving him the opportunity to respond. Such a holding would violate the FirstAmendment.

And thus, in the end, Trump wins his anti-SLAPP ruling and can now move to seek legal fees if he so chooses. Of course, Avenatti -- in a now deleted tweet -- called the ruling "limited":

It is not, in any way, limited. It is the proper application of Texas' anti-SLAPP law to a bogus defamation claim which Avenatti himself admits is part of an effort to cost Trump more money through the other lawsuits Avenatti has going against Trump. Soon afterwards Avenatti posted that he had already appealed the ruling to the 9th Circuit appeals court:

Here is the Notice of Appeal we just filed with the Ninth Circuit relating to the defamation claim against Trump. His record before the Ninth Circuit has been anything but good. #Basta pic.twitter.com/SK8QdycoUW

- Michael Avenatti (@MichaelAvenatti) October 16, 2018

He and Daniels will almost certainly lose this appeal and Trump will almost certainly win. But the real question is whether or not this helps Trump recognize the value of strong anti-SLAPP laws. It seems like now would be a good time for Congress to finally move on the federal anti-SLAPP law, while reminding Trump that it may have just saved him a bunch of money...