CNN, CBS: Looks like Avenatti and Daniels are about to lose a round to Trump

It seems like eons ago, but readers might recall that Stormy Daniels and her attorney Michael Avenatti launched a defamation suit against Donald Trump over a tweet in April. Daniels had told news media that she has been threatened in 2011 by a mysterious man in a parking garage to remain silent about her affair with Trump. Trump responded on Twitter by mocking the claim as a “con job,” while retweeting another account that noted similarities between the composite sketch of the suspect and Daniels’ own ex-husband.


So far no progress has been made in the search for the suspect, and last month Trump’s legal team moved for dismissal. On Monday, the judge signaled that he’s inclined to dismiss the case, suggesting Trump’s response was well within free speech boundaries:

Federal District Judge S. James Otero appears to be on the verge of dismissing Stormy Daniels’s defamation case against President Donald Trump.

During a hearing in Los Angeles Monday, the judge said that Trump’s tweet from April 2018 expressing skepticism about Daniels’ claim that a man approached her and threatened her in Las Vegas in 2011 appeared to be well within the bounds of free speech.

After hearing arguments from both sides, the judge said the tweet appeared to be political hyperbole and opinion protected by free speech.

CBS quotes Otero a little more extensively:

A federal judge appeared poised Monday to toss out a defamation lawsuit against President Donald Trump by porn actress Stormy Daniels. Judge S. James Otero said in U.S. District Court that a tweet the president wrote in April appears to be “rhetorical hyperbole” and speech protected under the First Amendment. …

“To allow the complaint to go forward and to have one consider this to be defamatory in the context it was made would have a chilling effect,” Otero said.

This might be even more true under the public-person doctrine of libel, slander, and defamation jurisprudence. Daniels was a public person as a porn star for years prior to Trump’s rise in politics, but she has become especially high profile in her legal feuding with Trump over the last two years. If anything, Avenatti has created an even higher profile for himself. That creates a very difficult bar to clear for defamation. People who make themselves public figures are expected to endure criticism, ridicule, and hyperbole. That certainly was the conclusion in Flynt, which unanimously ruled that Jerry Falwell couldn’t collect on an award for emotional damages when Hustler magazine made him the target of an obscene parody of a liquor ad, using blatantly false claims to humiliate him publicly.


In order to get over that high bar, Avenatti and Daniels would have to prove that Trump knew his claim was false and maliciously published it anyway. Just ordinary dislike and feuding won’t be good enough. But it’s entirely possible that Trump believes this to be a “con job,” or even highly likely. Besides which, it’s still more opinion than fact — the term “con job” is a rather common phrase meaning “untrue.” And that falls squarely into opinion, which is mainly beyond the reach of defamation claims, especially with public figures.

Avenatti declared afterward that he’d appeal a dismissal:

“I witnessed something here today that I never thought I’d witness,” Avenatti said. “That is: Donald Trump having a lawyer stand up in a federal court and espouse on his behalf the virtues and how important the First Amendment is in America. This is the same Donald Trump that has crapped all over the First Amendment and the news media for years.”

Er … if that’s the case, then why was Avenatti pursuing a pretty obviously weak case for defamation? Don’t bother asking Avenatti that on Twitter, though, because the free-speech advocate locked his account overnight. That’s something that most of us thought we’d never witness — Michael Avenatti excluding most of the world from his publicity-seeking social media declarations.

At any rate, Avenatti didn’t file the lawsuit to win it. He filed it for the attention it would bring. It seems unlikely that he’ll get much more for this on appeal, so he can get back to planning his 2020 presidential campaign instead. From behind a locked account. Good luck with that.


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