Trump finds himself on both Sides of the First Amendment

President Donald Trump recently escaped a defamation suit on First Amendment grounds. The same week, he was sued for using his presidential powers to violate the First Amendment.

Stormy Daniels Defamation Suit

Last October, Judge James S. Otero of the Central District of California issued an order dismissing the defamation case brought by adult film star Stephanie Clifford, aka Stormy Daniels, against President Donald Trump. Clifford v. Trump, 2:18-cv-06893 SJO (FFMx). The case concerns Trump's tweet about the anonymous man who threatened Daniels to keep quiet about her alleged affair with Trump. The court found that Trump's tweet was an exercise of his right of free speech under the First Amendment, dismissed the case and awarded Trump legal fees. In January, Daniels filed her opening brief in the 9th U.S. Circuit Court of Appeals to challenge that decision. Clifford v. Trump, 18-56351.

Daniels claims that in May 2011, she agreed to cooperate with In Touch magazine in connection with an article about her past relationship with Trump, after her ex-husband approached In Touch without her approval. As alleged in her complaint, a few weeks after agreeing to speak to the magazine, a man approached Daniels in Las Vegas threatening her and her daughter to "Leave Trump alone. Forget the story." After Trump was elected, Daniels worked with a sketch artist to render a sketch of the person who had threatened her. After she released the sketch publicly last April, Trump tweeted: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for fools (but they know it)!"

Daniels sued Trump for defamation in the Southern District of New York alleging that his "tweet attacks the veracity of her account of the threatening incident that took place in 2011" and "suggests that she is falsely accusing an individual of committing a crime against her." She contended that Trump meant to convey that she "is a liar, someone who should not be trusted, that her claims about the threatening encounter are false, and that she was falsely accusing the individual depicted in the sketch of committing a crime, where no crime had been committed." On this basis, Daniels alleged that Trump's tweet was false and defamatory, and constituted defamation per se because it charged her with committing a serious crime.

The parties later agreed to transfer the case to the Central District of California where, in August, Trump filed an anti-SLAPP motion to dismiss. Welcoming the First Amendment protections that both the anti-SLAPP statute itself and judicial precedent provide, Trump argued, among other things, that his tweet was a non-actionable opinion.

Luckily for Trump, the district court recognized that the anti-SLAPP statute seeks to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury."

The court easily determined that the complaint related to Trump's exercise of his right of free speech and agreed with Trump that his tweet constituted "rhetorical hyperbole" which is protected by the First Amendment. The court also held that Trump sought to use language to challenge Daniels' account of her affair and the threat that she purportedly received in 2011, and that the U.S. Supreme Court has held that a published statement that is "pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage" cannot constitute a defamatory statement." See Milkovich v. Lorain Journal Co., 497 U.S. 1, 32 (1990). Relying on First Amendment precedent, the court explained that even statements such as "ripping off" and "sleazy" constitute nonactionable opinion.

The trial court awarded Trump $300,000 in attorney fees as well as $1,000 in sanctions. Such an award is not uncommon when a defendant successfully brings an anti-SLAPP motion. Like California, the Texas anti-SLAPP statute that was applied in this case includes a mandatory fee-shifting provision when a defendant succeeds on his or her motion. In both California state and federal courts, it is not uncommon for trial courts to award significant attorney fees and costs following defendants' successful anti-SLAPP motions. It is also not uncommon for appellate courts to uphold those awards and to award additional fees incurred on appeal.

On appeal Daniels asserts that the district court incorrectly concluded that Trump's tweet was rhetorical hyperbole because a "statement is not hyperbole when it asserts 'an objectively verifiable fact.'" She contends the tweet objectively accuses her of lying about her account of the threatening incident and her account of her affair with Trump -- and these factual assertions are verifiable and not opinion. Daniels asks that the district court's decision be reversed and that she be permitted to proceed to discovery and a trial on the merits. The appeal is pending.

Attacks on the Media and Retaliatory Threats

President Trump's victory on First Amendment grounds stands in stark contrast to his public criticisms of an expansive right to free speech. Trump has issued numerous tweets condemning the actions of journalists, which many argue constitutes an effort to impinge the rights of the media and freedom of speech. With repeated "Fake News" soundbites and tweeting about changing libel laws, Trump appeared to enjoy the protections of the First Amendment when he was the defendant in a defamation action.

Nevertheless, the day after the court dismissed Daniels' defamation case on First Amendment grounds, Pen American Center, Inc. -- a prominent nonprofit organization that works to defend free expression -- filed a complaint against Trump (in his official capacity as the president) in the Southern District of New York. The case is Pen American Center, Inc. v. Trump, 1:18-cv-09433 (S.D.N.Y).

The plaintiffs allege that Trump intended to stifle exercise of the constitutional protections of free speech and a free press, and therefore violated the First Amendment and his oath to uphold the Constitution. They plead that "Trump has made eminently clear his disdain for the press and the legal protections the First Amendment affords it" and that he "has frequently referred to journalists covering his rallies as "disgusting" and has stated, more generally, that it is "frankly disgusting the way the press is able to write whatever they want to write" and that "people should look into that." The complaint alleges that Trump has issued retaliatory directives to officials in his administration and public threats to use his government powers against news organizations and journalists who have reported on his statements, actions and policies in unfavorable ways, including the following:

• Trump allegedly demanded that Jeff Bezos, Amazon and the Washington Post, which Bezos owns personally, be punished because of the Post's coverage of him. This includes reports that Trump allegedly issued an executive order directing the U.S. Postal Service to double Amazon's delivery rates.

• Trump allegedly has threatened CNN and its parent company, Time Warner.

• Trump allegedly regularly threatens to withdraw the White House press credentials of individual reporters.

• Trump allegedly has threatened to challenge broadcast licenses for television stations owned by or carrying NBC and other networks.

The plaintiffs argue that Trump has First Amendment rights and is free to criticize the press, but he is not free to use the power and authority of the United States government to punish and stifle free speech. They contend that Trump has directed his threats and retaliatory actions at specific outlets whose content and viewpoints he views as hostile. As a result, journalists who report on the president seek a remedy for what they allege is the president's unconstitutional actions aimed at suppressing speech. Specifically, the plaintiffs seek an order (a) declaring that Trump's retaliatory acts violate the First Amendment, and (b) enjoining "Trump from directing any officer, employee, agency, or other agent or instrumentality of the United States government to take any action against any person or entity with intent to retaliate against, intimidate, or otherwise constrain speech critical of him or his Administration."

In December, the Department of Justice filed a letter to the court laying out the bases of Trump's anticipated motion to dismiss the complaint. The DOJ argued, inter alia, that the court lacks jurisdiction to grant the relief sought because separation of powers principles prevent the federal courts from enjoining the president's official acts or from entering declaratory relief against the president. The case was stayed due to the then-pending government shutdown. Last week, the court ordered that the plaintiffs are to file their amended complaint, if any, by Wednesday.

Given his arguments in Clifford v. Trump, it appears that Trump is a fan of the First Amendment. His arguments in response to the Pen American Center, Inc. v. Trump case, however, wherein he is alleged to have used his presidential powers to stifle First Amendment protections, will be interesting to follow.