Donald Trump once famously boasted he'd "open up" libel laws to make it easier to sue news organizations, but on Tuesday, he took a step in the opposite direction thanks to the overriding interest of his own self-preservation. At the Ninth Circuit Court of Appeals, his attorney argued that a federal judge was within his authority to throw out a defamation complaint filed against him by porn star Stormy Daniels.
Back in 2018, Daniels was attempting to get out of a "hush deal" concerning her alleged affair with Trump when her then-attorney Michael Avenatti released a sketch of a man who threatened Daniels (real name: Stephanie Clifford) into remaining silent back in 2011. In response, 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)!"
Trump's tweet became the basis of Daniels' defamation claim, and in October 2018, U.S. District Court Judge S. James Otero concluded that Daniels had failed to establish a prima facie case for defamation. The judge saw "con job" as "rhetorical hyperbole" outside the scope of something that could be disproved. What's more, Daniels had failed to demonstrate "actual malice," meaning Trump had knowledge of falsity or recklessly disregarded the truth. That's a standard that public figures must meet to carry defamation claims — and when folks like Trump say they want to reform libel laws, that's usually what they're attacking.
But Judge Otero's dismissal raised another issue, and while some are paying attention to the case as merely the latest chapter in Stormy Daniels' feud with the President of the United States, the case has raised a consequential legal matter of special interest to all media companies: SLAPPs, or Strategic Lawsuits Against Public Participation.
Daniels' complaint was dismissed under Texas' anti-SLAPP statute, which provides protection against frivolous litigation intended to chill one's free speech activity. Media companies frequently get hauled into court, and like Trump here, publishers often rely upon SLAPP protections to quickly extradite themselves from nuisance suits before legal bills pile up and the costs of defending amount to victories for plaintiffs no matter the merits of the claims. However, it's become controversial whether federal courts should be applying SLAPP laws enacted by states. Some federal circuits have come to the conclusion that SLAPP standards impermissibly regulate federal rules of civil procedure, which guide judges to analyze a complaint's plausibility rather than its likelihood of success. Put a different way, on matters of public concern where First Amendment rights are implicated, the burden of showing a winnable case shifts to the plaintiffs at a very early stage.
When did the anti-anti-SLAPP movement pick up steam? Well, that dates to the time that Trump attempted to countersue a student of the infamous Trump University, and the case went up to the Ninth Circuit. In Makaeff v. Trump University, the now-retired Alex Kozinski authored an influential concurring opinion. Other appellate justices like Brett Kavanaugh then took the cue and ran roughshod over district judges using anti-SLAPP rules.
So now, Trump is back at the Ninth Circuit defending the worth of an anti-SLAPP statute thanks to Stormy Daniels' appeal. Even more incredible, he's represented by Charles Harder, who has built somewhat of an anti-media reputation after slaying Gawker in the Hulk Hogan sex tape lawsuit. Ironically, it's become the duo of Trump and Harder who are faced with the task of saving SLAPP analysis in the Ninth Circuit, which Kozinski once called the "Hollywood circuit."
Clark Brewster made arguments for Daniels in her effort to overturn a "knockout [that] was swift and punishing," plus a result meaning she'd be responsible for paying $293,000 of Trump's legal bills. Brewster said this was a case of first impression, meaning the legal issue at play is novel. While appellate circuits have come to conflicting conclusions about applying SLAPP laws in federal circuit, this case involves a California judge applying Texas' anti-SLAPP statute. Last August, in Klocke v. Watson, the Fifth Circuit ruled Texas' anti-SLAPP statute doesn't apply in federal court, raising the odd prospect that Texas lawmakers enacted legislation of benefit to those living outside of their own state in defending lawsuits from their own citizens (like Stormy Daniels). “The issues of comity control,” Brewster said. “You have to give deference to the sister circuits.”
"Given that the Fifth Circuit doesn't apply the TCPA [Texas' anti-SLAPP statute] in federal court, why should we apply it here?" asked Ninth Circuit judge Kim Wardlaw of Harder.
"That's a good question," responded Harder, who at first seemed to struggle with voicing words few would have ever predicted would come out of his mouth.
At the hearing (see the video recording here), Harder called Texas' anti-SLAPP statute a "substantive" change (rather than a procedural one), and added it was virtually identical to California's anti-SLAPP statute, which has repeatedly been affirmed by the Ninth Circuit. He then quoted Wardlaw in Makaeff v. Trump University when she wrote, "Through anti-SLAPP laws, the legislatures of Arizona, California, Guam, Hawaii, Nevada, Oregon, and Washington have decided to impose substantive limitations on certain state law actions. Refusing to recognize these limitations in federal court is bad policy. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.”
Shifting to his own thoughts on the matter or at least his best attempt at advocacy, he added, "It's good law in the Ninth Circuit to apply the anti-SLAPP statutes. And when you have the TCPA, which has been held by Texas law to be substantively identical to the California anti-SLAPP statute, there's no reason not to apply it."
"The only reason is, had you brought this case in Texas federal court, you would not have this motion available to you, right?" asked Wardlaw.
"At the time we filed it, the Klocke decision had not come about," answered Harder. "If our case had preceded the other one, perhaps the Fifth Circuit would have been persuaded otherwise. I don't know."
Harder then made the point that without federal court application of anti-SLAPP statutes, plaintiffs would "forum-shop" their suits into such jurisdictions in order to gain advantage. Said Harder, "This court correctly recognized that if the legislature wants to get rid of SLAPP suits, you apply the SLAPP statutes everywhere they can be applied including in federal courts. Klocke wasn't looking at forum shopping. I think it missed an important point."
Given the bad blood between Donald Trump and Stormy Daniels, hundreds of thousands of dollars on the line, and most important, an appellate circuit split on the big issue, don't be shocked if this case winds up at the Supreme Court no matter which way the Ninth Circuit comes down. (That is, if the high court doesn't tackle the issue of SLAPPs in some other controversy first.) If that happens, more irony may ensue: Media companies may line up behind Trump with amicus briefs, and Trump may find himself to be a slight underdog thanks to conservative justices like Kavanaugh, whom he himself put on the high court.