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Wednesday, October 17, 2018

SLAPP dismissal of Stormy Daniels' defamation suit

Judge Otero of the Central District of California dismissed Stormy Daniel's defamation action against President Trump under the Texas anti-SLAPP statute, holding that the President's tweets were rhetorical hyperbole and imposing attorney's fees under the statute.

Three quick thoughts.

The basic point about rhetorical hyperbole is correct as a matter of the First Amendment. I think the basic premise of this defamation suit is problematic--"A accuses X of doing something, X denies it, so A sues X for defamation for calling her a liar."

Anti-SLAPP suits are swallowing the First Amendment  as a defense to defamation, in a way I do not believe the statutes were intended to do. SLAPP stands for "strategic lawsuit against public participation." The paradigm that motivated these laws was Wal Mart bringing a defamation suit against a citizen who spoke at a city council meeting against a proposal to build a Wal Mart in town--where the lawsuit is designed to deter citizens from engaging in the public discussion. The statutes were geared towards situations with power and money imbalances (hence the fee-shifting), where the point of the suit is to make people think twice about engaging in public discussion over these matters. Not every defamation suit is a SLAPP suit. It certainty does not fit this suit--a defamation claim against the wealthy President of the United States over his obnoxious tweets, with no realistic prospect that anyone will be deterred from public participation. This seems a case that should be left to the First Amendment (especially given the court's focus on rhetorical hyperbole, a First Amendment concern).

The circuit split continues over whether SLAPP statutes apply in federal court. But this case offered several wrinkles. Texas law applied, so C.D. Cal. was applying the Texas SLAPP statute, which the Fifth Circuit has not yet determined applies in federal court. And because the case was transferred from the Southern District of New York to the Central District of California, Second Circuit precedent (which has not determined the Erie issue) applies rather than Ninth Circuit (which holds that the SLAPP laws do apply). A cert petition in the Tenth Circuit case is pending; I wonder if the Court will be more interested in the issue.

An additional wrinkle is that the district court arguably gave the game away at one point. In explaining why the SLAPP motion could be resolved without discovery, the court analogized it to a 12(b)(6). But if this is the same as a 12(b)(6), then there is a controlling federal statute that should be applied over any state law.

Posted by Howard Wasserman on October 17, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


He appears to be, at the earliest, a 1990 grad of Penn Law.

Posted by: Asher | Oct 18, 2018 10:50:44 AM

I took several courses in medical school in 1945 on diseases. I never learned about that polio vaccination. So it seems rather new."

Posted by: Howard Wasserman | Oct 18, 2018 6:48:24 AM

Thought this might amuse you:

Five district court nominees — Thomas P. Barber, Wendy Williams Berger, Rodney Smith and T. Kent Wetherell II, all state judges in Florida, and Corey Landon Maze, a special deputy attorney general for Alabama — also came before the [Judiciary] committee on Wednesday, facing questions about issues including the First Amendment and racial preferences in college admissions.

But [Senator] Kennedy seemed to stump one of them, Judge Barber, when he asked whether Federal District Court judges possess the authority to issue “nationwide injunctions” barring the federal government from enforcing a law against anyone, not just against the plaintiffs before them.

“What’s the legal basis for that?” Mr. Kennedy asked.

“Senator, I will confess, I’ll say this much: I don’t know a lot about that,” Judge Barber replied. “I took several courses in law school in federal courts. I never learned about that. It was never taught. So it seems rather new.”

Posted by: Asher | Oct 18, 2018 1:07:22 AM

based on my experience in California, in the pre-SLAPP era the state trial courts rarely enforced first amendment rights in the pleading stage, even when the FA defense was clearly dispositive, thus prompting the need for a statutory fix (i.e., SLAPP law).

yes, the statute is now applied in all manner of cases outside of the core fact pattern that may have prompted the statute. but i would hate to see it interpreted narrowly and go back to a situation were strong first amendment defenses were not enforced until after full discovery, trial, and appeal.

(i had a case where the plaintiff alleged tortious interference because my client filed an administrative complaint with a federal agency alleging that the plaintiff was legally ineligible for certain government contracts -- an act that's pretty squarely within the "petition for redress of grievances" aspect of the FA. the superior court judge told us that he expected we would eventually win on FA grounds but that we'd need to see what discovery would show and how the jury decided. fortunately, we were one of the few defendants who was able to get the court of appeal to issue a writ. in the pre-SLAPP days, trial courts would not sustain demurrers on FA grounds, seemingly regardless of the merits and writs were very hard to come by.)

Posted by: anon | Oct 17, 2018 5:46:32 PM

Do you think there are any genuinely harmful consequences for anti-SLAPP laws being applied in cases like this and taking over as the practical protection of 1st amendment or are you just observing? I mean it may not have been intended to apply to cases like this but you can't offer a rule which would fix the problem of SLAPP suits that didn't also apply to defendants with significant resources.

The fact that anti-SLAPP motions seem to be swallowing first amendment law seems to be proof that existing 1st amendment protections weren't sufficient since the mere harms of moving to discovery on the issue were a major deterrent (so much so that they are viewed as the important battle).

Are you suggesting that an anti-SLAPP type rule should be constitutionalized?

Posted by: Peter Gerdes | Oct 17, 2018 3:01:23 PM

The Texas Supreme Court has repeatedly interpreted its anti-SLAPP statute and rejected a narrower interpretation like the one you suggest. The legislature could have responded by amending the statute if it disagreed.

Posted by: Curmudgeonly Ex-Clerk | Oct 17, 2018 11:59:47 AM

Just he who wants , can reach the ruling , in an independent format ( not locked ) here :



Posted by: El roam | Oct 17, 2018 11:16:52 AM

Interesting , Just worth to note , that the issue of the " rhetorical hyperbole " is not always automatically immune from defamatory claim . It is possible to assume ( not as in the current case of that tweet of Trump of course ) that repetition of hyperboles , may constitute a game changer , here I quote :

Mr. Trump also made a one-off rhetorical comment, not a sustained attack on the veracity of Plaintiff's claims. This distinguishes the instant case from other cases where courts have determined that public statements constituted defamation. In Bentley, for example, the host of a call-in talk show on a public-access channel repeatedly accused a judge of being corrupt. See Bentley, 94 S.W.3d at 584. When confronted about the veracity of the allegations, the talk show host doubled down, falsely claiming that he had proof of the judge's corruption, including public records and records of conversations with courthouse employees. See id. The Texas Supreme Court held that while a "single, excited reference to [the judge's corruption] might be taken to be rhetorical hyperbole . . . [the host's] characterization of [the judge's] conduct as criminal is only part of [the host's] efforts over many months to prove [the judge] corrupt." Id. at 581.

While here :

Mr.Trump's tweet falls far more in line with a "single, excited reference." Unlike the defendant in Bentley, Mr. Trump provided no support for his views in the tweet nor did not he repeat the allegations in the tweet.

So :

Accordingly, the Court grants the Special Motion because Mr. Trump's statement constituted "rhetorical hyperbole" that is protected by the First Amendment.


Posted by: El roam | Oct 17, 2018 11:12:50 AM

It isn't entirely about wealth and power. As I wrote in the original post, the purpose of the statutes was to prevent suits that are designed specifically to deter people from engaging in public discussions; I describe the paradigm case that prompted the development if these statutes in the original post. There is no such risk that the President of the United States or the Washington Post will be deterred by a defamation suit--at least not beyond ways that the First Amendment already deals with.

Posted by: Howard Wasserman | Oct 17, 2018 10:40:11 AM

Are you saying the application of anti-SLAPP laws should depend on the respective wealth and power of the two parties, and not just on the merits?

Posted by: Biff | Oct 17, 2018 10:17:36 AM

Seems ridiculous that the President can say something about a private citizen -not a political opponent - and it is called political hyperbole. And the fact that he does it so often helps him in these cases.

Posted by: Public NME | Oct 17, 2018 10:08:48 AM

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