President makes free speech claim an actress' defamation suit

Attorneys for President Donald J. Trump say a case brought against him over an allegedly defamatory tweet is an attack on his free speech designed to silence him.

Trump's counsel Charles Harder of Harder LLP asked U.S. District Judge James Otero to dismiss the case brought by pornographic film actress Stormy Daniels, whose real name is Stephanie Clifford, in an anti-SLAPP motion filed Monday.

The lawsuit, newly reassigned to the Central District of California from the Southern District of New York, originates from a claim Daniels made about an alleged affair with Trump. Daniels said in multiple recent interviews after the affair ended, a man claiming to represent Trump attempted to intimidate her into remaining silent.

Trump questioned the account in reply to a "satirical" tweet casting doubt on Daniels' claim, Harder wrote. In his reply, Trump called the matter "a total con job." Stephanie Clifford v. Donald J. Trump et al., 18-cv-02217(C.D. Cal., filed March 8, 2018).

Daniels sued for defamation in April, claiming Trump's tweet had subjected her to "threats, economic harm, and reputational damage." But Harder claims the opposite has been proven true with Daniels making high-profile appearances on programs like "Saturday Night Live" and "60 Minutes" while her attorney Michael Avenatti "has parlayed his newfound fame" into a potential 2020 Presidential run.

"Plaintiff's litigation counsel, Michael Avenatti, reacted to the comment on CNN by calling it 'another gift from the heavens,'" Harder wrote. "However, plaintiff and Mr. Avenatti apparently changed their minds."

Kenneth White, a First Amendment litigator at Brown, White & Osborn LLP not involved in the case, said the filing is "dressed up with feckless Trumpism." He noted the "gratuitous listing" of adult films in which Daniels has appeared, which would seem to suggest that an pornographic film actress can't be defamed.

But the filing itself is fairly standard in cases like this, White said, and on the merits, the core argument that Trump's tweet was a protected opinion is "clearly right."

"Trump's tweet offered an opinion with rhetorical flair over disclosed facts -- the tweet he was citing. It's not a provable statement of fact, so it can't be defamation," White said. "The motion, Trump, and Harder are generally insufferable, but it's right and should be granted."

Asked for comment, Avenatti seemed incredulous in an e-mail Tuesday regarding Trump's concerns about the chilling of free speech.

"All of a sudden Trump is a free speech advocate?" Avenatti wrote. "Really?"

The lawsuit shouldn't be confused with a defamation claim against Trump and his former attorney Michael Cohen brought by Daniels in March. Otero stayed that case, pending the completion of a criminal matter brought against Cohen in New York.

The judge also recently transferred a case brought by Daniels against her former attorney for his handling of the Trump negotiations to Los Angeles County Superior Court.