Adult film star Stormy Daniels has filed a new lawsuit against President Donald Trump, alleging that he defamed her in a tweet claiming that a forensic sketch of a man who allegedly threatened her in 2011 was "a total con job."
New York has a rich legal history of defamation lawsuits, within which there is also a rich history of defamation lawsuits involving Donald Trump. From this subcategory of cases alone, there is plenty of judicial guidance as to whether Daniels' case can survive the motions to dismiss that are surely on their way.
A defamatory statement is a false statement that exposes a person to public contempt, hatred, ridicule, aversion or disgrace or induces an evil or unsavory opinion of her in the minds of the community. To survive a motion to toss her case out, Daniels must allege (1) a false statement (e.g., "con job"), and (2) publication of it to a third party (or 50 million plus followers on Twitter), (3) absent "privilege," which (4) causes harm, unless the statement is a category called "defamatory per se," in which case that harm is presumed.
As a preliminary matter, the complaint alleges "per se" defamation, but this is likely not a viable cause of action for the plaintiff. A statement that is defamatory per se suggests unprofessional conduct or otherwise injures someone in her business and is actionable without proof of special damages. Daniels would have a hard time showing professional harm after admitting in her "60 Minutes" interview that she's "getting more job offers now" and "making more than (she's) been making, doing the same thing that (she's) always done." Just because a tweet is not defamatory "per se" doesn't mean the president's tweet is not defamatory or actionable.
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The court will determine whether the statements are reasonably susceptible of a defamatory connotation. Loose, figurative or hyperbolic statements are not defamatory, even if they are deprecating to Stormy Daniels. Just because some readers see a defamatory meaning in a tweet does not necessarily mean that inference is reasonable, either. In fact, New York courts recognize that an audience would reasonably anticipate the use of epithets, "fiery rhetoric" or hyperbole during a heated public debate like this one.
Trump may also have been "privileged" to tweet those words. This is not a privilege in the sense of executive privilege unique to the president. Rather, it's a privilege available to every potential defendant: Opinion.
Expressions of opinion, as opposed to assertions of fact, are privileged, and generally cannot be defamatory. This is in line with our societal preference that ideas be fully aired. Another practical problem with suing over an opinion is that it often cannot be proved false.
Trump is also a master of using imprecise, indefinite and ambiguous words when attacking others via Twitter. If words mean different things to different people, it may be that they cannot be proved true or false because of their subjective, relative meanings.
In a recent defamation case involving Trump, a New York court recognized that the culture of internet communications is distinct from that of newspapers and magazines, and encourages a "freewheeling, anything-goes writing style."
That's one way of putting it.
Indeed, according to the court, statements on social media are more likely than others to be "vigorous expressions" of opinion, rather than a presentation of factual matter.
New York Courts have specifically recognized that Trump’s tweets are "rife with vague and simplistic insults" such as "total loser," "dummy," "dope" or "dumb," "crazy," "wacko," all of which "deflect serious consideration."
A New York Court would likely conclude, as it has before, that even if Trump's intemperate tweets are clearly intended to belittle someone like Daniels, any reasonable reading of them could not subject a plaintiff to contempt or aversion, or induce any unsavory opinion of her, reflect adversely upon her work or otherwise damage her reputation.
In the words of the court, "to some, truth itself has been lost in the cacophony of online and Twitter verbiage to such a degree that it seems to roll off the national consciousness like water off a duck's back."
Trump has, in the past, pledged to make it easier to sue for defamation. Paradoxically, he has actually made it harder to sue for defamation. By singlehandedly lowering the standard of communication on the twittersphere, he has created a legal environment where courts essentially conclude that tweets — particularly his tweets — often cannot be taken seriously, and should not be actionable as defamation.
Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.