Did Defamation In American Politics Just Get Stormier? It Seems So If Political Rhetoric Trumps All:

was a liar, that she could not be trusted and that she had invented the story about being threatened. She also claimed that it had been published with actual malice because, as she further alleged, either Trump knew about the man that threatened her (either because he or his attorney had directed him to make the threat) or, alternatively, Trump had acted with reckless disregard for the truth because he could not have known what had happened to Clifford in a parking lot in 2011.

In response to Clifford’s lawsuit, the President brought a Special Motion to Dismiss/Strike Plaintiff’s Complaint on the basis that the lawsuit was a Strategic Lawsuit Against Public Interest (“SLAPP”) and an alternative Motion to Dismiss. The California District Court stated that a Special Motion to dismiss under an anti-SLAPP statute is to be treated as analogous to a motion to dismiss under Federal Rules of Civil Procedure 12 (b)(6), applied the substantive requirements of the applicable anti-SLAPP statute, and granted the Special Motion. The alternative Motion to Dismiss was denied as being moot given the decision in the Special Motion. Significantly, Clifford was not given leave to amend her Complaint, effectively ending her lawsuit barring a successful appeal of the decision.

After a discussion under the New York choice-of-law principles (where the case had originally been filed), the Court determined that Texas law (where Clifford is domiciled) was applicable. Texas’ anti-SLAPP statute (which is similar to most other jurisdictions with similar legislation) provides that its objective is to “encourage and safeguard the constitutional rights of persons….to speak freely…and otherwise participate in government to the maximum extent permitted by law” while at the same time recognizing the rights of persons to bring meritorious lawsuits when they have been injured. Under Texas law, the Courts have defined the exercise of the right of “free speech” as communication relating to a matter of “public concern”. In turn, the Texas statute defines a “matter of public concern” as issues relating to such matters as (without being exhaustive): the government, community well-being and public officials or public figures. For a defendant to avail themselves of the Texas anti-SLAPP motion legislation, they must demonstrate that the defamation alleged concerned the defendant’s exercise of free speech. Once that is established, the burden switches to the plaintiff who must establish “by clear and specific evidence a prima facie case for each essential element of the claim.” Note that even if this can be established by a plaintiff, the Texas anti-SLAPP statue still affords the defendant the ability to prevail on the motion by establishing by a preponderance of evidence “each essential element of a valid defense” to the claim.

It was not very difficult for the California District Court to find that Clifford’s lawsuit related to the President’s exercise of his right to free speech on an issue of public concern. The Court noted that a contextual analysis of the allegations and their underlying circumstances involved (i) a plaintiff (Clifford), who had styled herself as an adversary of the President of the United States in Court filings, (ii) releasing a sketch of a man who she claimed had threatened her in order to suppress a story about her purported sexual affair with the President, (iii) other allegations by the plaintiff that Trump and his attorney had aggressively tried to silence the plaintiff specifically with an eye on not upsetting the President’s election chances, and (iv) significant portions of the overall context, including the release of the sketch and the President’s alleged defamatory tweet, occurring while the defendant was the sitting President of the United States Of America. One could argue that there is likely not a better example of speech related to an “issue of public concern” than in this particular case.

Having crossed this threshold, the California District Court then moved to the substantive analysis of whether Clifford had established a prima facie case for each element of her defamation claim. Under Texas law, and generally, the elements required to support a cause of action for defamation require (1) publication of a false statement, (2) defamatory of the plaintiff, (3) the requisite degree of fault regarding the truth of the statement (malice for public individuals or in relation to a matter of public concern), and (4) damages (unless the statement constituted defamation per se, being words that inherently injure a person’s reputation without the need for proof of injury).

It is the first element (the publication of a false statement by the defendant) upon which the Court spent most of its analysis and rested its decision. The law of defamation has long been the subject of exceptions designed to protect robust public debate and the marketplace of ideas from being unduly stifled. Defamation, in its broadest sense, involves a false publication that would subject the defamed to hatred, contempt or ridicule. The common law permitted the extension of defamation to statements of fact or opinion. Initially the balance was struck between vigorous public debate and harmful publication under the doctrine of “fair comment”, which allowed for a privilege when the publication concerned matters of public concern, was based on true facts, represented the actual opinion of the one making the statement and was not made solely to cause harm. The Supreme Court, in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) extended First Amendment protections to speech involving public officials by requiring that defamation in such circumstances required “actual malice”, defined as actual knowledge that a statement was false or reckless disregard as to its falsity. Three years later, in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), this First Amendment protection was extended to “public figures.” When the subject of the alleged defamatory statements is a private person caught up in matters of public concern, the “actual malice” standard is reduced to the requirement of finding the statement was made negligently in terms of it being false or not. Finally, in Philadelphia Newspapers Inc. v. Hepps, 475 U.S. 767 (1986), the Supreme Court held that in the case of matters of public concern, the burden shifts to the plaintiff to establish that the statements were false as opposed to the burden resting with defendants to prove that they were true. As the Supreme Court noted in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), this burden shift was “justified on the grounds that placement by state laws of the burden of proving truth upon media defendants who publish speech of public concern deters speech because of fear that liability will unjustifiably result.”

What the Supreme Court has rejected, however, is the notion that “opinion” is automatically protected under the First Amendment when it comes to matters of public concern. The reason for this is that opinions often imply the assertion of objective facts. As Judge Friendly noted in Cianci v. New York Times Publishing Co., 639 F. 2d. 54, 61 (CA2 1980), it “would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words “I think.” Where the line of First Amendment protection for public discourse becomes murky centers around the concept, of statements that “cannot reasonably be interpreted as stating actual facts.” Since statements made in newspapers, online, in speeches and through other publication forms and forums about matters of public concern do not conveniently or easily sort themselves into black and white categories of actionable or not, context must guide the analysis of reasonable interpretation. The broad and general circumstances, format and style of the speech or statement are crucial factors in arriving at a determination. However, in the Clifford v. Trump case, the political context per se is arguably elevated to the controlling factor regardless of any reasonable interpretation of easily understood and objectively verifiable facts within a published statement. If that’s the case, then, at least in politics, anything goes.

The California District Court, in its analysis of whether Clifford had sufficiently pleaded the first element of defamation (being the publication of a false statement) referred to three principles laid out in Milkovich, supra and Bentley v. Bunton, 94 S.W. 3d 561 (Tex. 2002) which are that, in order to be defamatory, statements in the context of public discourse, (i) must be provable as false, (ii) must reasonably be interpreted as stating actual facts, (iii) must be made with knowledge or reckless disregard of their falsity. The Court quite easily found that the plaintiff had satisfied the first principle and noted that the President’s tweet contained verifiably true or false statements. These were that Clifford was a liar about the alleged threat and her alleged affair with the President both because the President claimed that the man who allegedly threatened Clifford did not exist and that Clifford was engaged in a “con job.” However, the Court next found that the plaintiff’s claims fell apart when examining the second set of Bentley/Milkovich principles. Relying on a quote from the Dissent of Justice Brennan in Milkovich, supra, the Court noted that “a statement that is “pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage” cannot constitute a defamatory statement.” The Court concluded that Trump’s tweet constituted “rhetorical hyperbole”, and “extravagant exaggeration [that is] employed for rhetorical effect” and displayed “an incredulous tone, suggesting that the content of the tweet was not meant to be understood as a literal statement about Plaintiff.” In other words, the Court found that the tweet, being rhetoric and hyperbole, could not be reasonably understood as stating an actual fact. The Court also noted, as a further contextual factor in arriving at its decision, that the President did not repeat the allegations in his tweet and found the President’s comments to be a “single, excited reference” which the President did not seek to sustain or support other than in the one tweet.

Thus, the Court pushed the Trump tweet into the safe haven category of rhetoric and hyperbole in order to tip the scale to a finding that it was First Amendment protected speech. Yet, the Supreme Court noted in Bose Corp. v. Consumers Union of United States Inc., 466 U.S. 485 (1984), that there needs to be an ”independent examination of the whole record.” In Clifford v. Trump, there was scant surrounding record with which to dress the President’s comments with any characterization which could belie their plain meaning. In two short sentences, with minimal verbiage, he called Clifford a liar. It was simple language stating that the man Clifford claimed had threatened her “did not exist” and that her story was a “con job.” There was little other context let alone any that would suggest that the President was not actually calling Clifford a liar or did not want or expect those reading the tweet to think anything other than that Clifford was a liar. The tweet carried none of the hallmarks of rhetoric, exaggeration, extravagance or figurative speech. The President called Clifford a liar and he meant exactly that. Contrast this with the case of Greenbelt Cooperative Publishing Assn. Inc. v. Bresler 398 U.S. 6 (1970), where a local newspaper was not liable for describing a tough-negotiating developer as having committed “blackmail” because the overall examination of the record indicated that the use of the word “blackmail” was, as Chief Justice Rehnquist described in Milkovich, supra, “loose, figurative or hyperbolic language which would negate the impression” that the writer was seriously maintaining that such a crime had been committed. The same held true in in Letter Carriers v. Austin, 418 U.S. 264 (1974), where the overall context dictated the finding that the word “traitor” when discussing a union “scab” was a loose and figurative use of the word and thus non-defamatory. In contrast, the majority decision in the Milkovich case held that the statements in a local newspaper that Milkovich, a high school wrestling coach, had out and out lied in a hearing before an Ohio High School Athletic Association constituted actionable defamatory statements because they involved the straightforward assertion that Milkovich had lied under oath without any surrounding factors to indicate that this was a loose or exaggerated characterization and not a clear cut allegation of perjury. So what gives? Why did the President get a pass? The Court’s reliance upon Rehak Creative Services, Inc. v. Witt, 404 S.W.3d 716 (Tex. App. 2013) points towards the answer.

The overall facts and circumstances in Rehak, supra and the statements at issue, presented a richer field for contextual analysis than President Trump’s two sentence tweet. Nonetheless, in Rehak, the Texas Court of Appeals, as the Court specifically noted, “held that none of the statements on [the defendant’s] website constituted defamation in large part because [the defendant’s] “website’s tone” and the “campaign context” of the statements suggested that the statements constituted “rhetorical hyperbole” that was part of politics.” The Court then wrapped up its relevant conclusions by noting that Clifford had publicly presented herself “as a political adversary” to the President and had, in Court filings, “challenged the legitimacy” of Trump’s 2016 election. The Court held that it was loathe to “significantly hamper the office of the President” in responding to political challenges and adversaries and that, in response to Clifford’s comments the President should be allowed to voice his own “non-actionable opinions.”. According to the Court “[any] strongly-worded response by a president to another politician or public figure could constitute an action for defamation. This would deprive this country of the “discourse” common to the political process.” Finally, the Court reasoned that “[to] allow Plaintiff to proceed with her defamation action would, in effect, permit Plaintiff to make public allegations against the President without giving him the opportunity to respond. Such a holding would violate the First Amendment.”

It appears that the Court has bootstrapped the President’s tweet into protected First Amendment speech because it is speech from the President. Any plain analysis of the statements, and their context both general and broad, leads to the reasonable interpretation that President Trump was calling Clifford a liar, plain and simple. Indeed, in the broadest of contextual analyses, could anyone really believe that President Trump was simply saying “Oh that Ms. Clifford, what an imagination!” He was telling a nation that she was a liar, loud and clear. There was no rhetoric, there was no hyperbole and there was no figurative speech. The Court seemingly pushed the tweeted statements into protected status, under the “rhetorical hyperbole” rubric, because it involves Presidential politics. The Court’s final analysis, in the paragraph above, is not truly consistent with the law. Not every “strongly-worded” response would be actionable, only those that meet the Milkovich/Bentley analysis. It is not counter to the First Amendment to prevent a President from defaming another unless the Court wants to establish a further category of automatically protected public speech called “Presidential speech” where no further analysis is necessary. The Court almost goes that far. This is, in a sense, somewhat understandable. First, the office of the President, especially in this new technological era, needs to be free to communicate without fear of being sued. Second, and more important and far reaching, the Court recognized the public discourse “common to the political process” in America. Rehak, supra, did the same. Ultimately, that political landscape is nasty, fast and rapier sharp. It is a digital world full of mean, sharp and vicious attacks. The Court’s decision, it is suggested, almost recognizes that political speech falls within the First Amendment protection afforded “rhetorical hyperbole” simply because it is political speech, regardless of, and without the need for, any further analysis. Perhaps with the complete and non-stop inundation of digital communication, the situation in American politics must necessarily so devolve lest the Courts become clogged with lawsuits claiming defamation for myriad social media posts, tweets, television commercials, etc. Of course, there will be cases that so clearly cross the line that their actionability for defamation will remain notwithstanding the political context (for example, falsely alleging murder by a political opponent); however, that is a very far line to cross. But if the Courts are to be consistent, then the offices of Governor, Mayor and so on down the political line, will need to be afforded the same protection from “significantly hampering” their ability to engage in the public discourse with political rivals and adversaries.