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Stephanie Clifford/Donad Trump.
Reuters/Brendan McDermid, Joshau Roberts
Don’t underestimate the value of rhetorical hyperbole.
SHOCK TALK

The judge on Stormy Daniels’ defamation case says hyperbole is essential to American discourse

Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

A federal judge in Texas on Tuesday (Oct. 15) dismissed a defamation case filed by Stephanie Clifford, better known by her adult film name Stormy Daniels, based on a tweet by US president Donald Trump. Judge James Otero’s opinion explains that his decision assures “that public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of the United States.”

For the many Americans who find the “imaginative expression” and “rhetorical hyperbole” of our time exhausting, this reasoning may come as a surprise or disappointment. But the judge’s decision is at the very least interesting in that it highlights the extent to which the US Constitution’s First Amendment protects the right to say wild things, especially in the political context, whether or not the statements are true.

The tweet in question is tied to events that happened before Trump became president in January, 2016. Daniels alleges that in 2006 she had an affair with Trump, and that in 2011 when she agreed to speak to In Touch magazine about it, an unknown man threatened her and her daughter to “Leave Trump alone.” In April this year, Daniels released a sketch of the man, done by a composite artist after Trump’s election. The president tweeted in response: “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!”

Daniels argued that the tweet defamed and damaged her because it essentially called her a liar, someone who invented the man in the sketch, and who deceived the media about the person’s existence.

The First Amendment protects the right to say wild things, especially in the political context, whether or not the statements are true.

Under US law, to prove defamation Daniels had to show that Trump published a false statement which defamed her, that he acted negligently (if she’s considered a private individual) or with actual malice (if she’s a public figure), and that she suffered damages as a result of his statement. But Trump’s attorney defended his tweet with an interesting sidestep, saying it wasn’t even an attempt to be factual really. Rather, it was merely an opinion, and not something that qualified for a defamation claim.

Judge Otero agreed with the president’s defense, citing a prior case which said that “expressions of opinion may be derogatory and disparaging; nevertheless they are protected by the First Amendment of the United States Constitution.”

The truth is, whether or not Trump made a false statement about the plaintiff doesn’t much matter in this case. The president’s counsel argued that he was exercising his right to free speech as a public official responding to a “matter of public concern,” and the judge concurred.

Otero noted that Daniels couldn’t actually prove Trump’s statement was false. But more importantly, because she had positioned herself as someone who challenged the legitimacy of Trump’s presidency—arguing that Trump tried to silence her through payment (paywall) via his attorney Michael Cohen to protect his chances of winning the election—his tweet had to be considered within the especially protected context of political speech. And when it comes to politics, statements that are “pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage” don’t qualify as defamatory.

Indeed, such statements are protected to ensure lively and creative debate in the political arena. Otero’s opinion states: “The Court agrees with Mr. Trump’s argument because the tweet in question constitutes ‘rhetorical hyperbole’ normally associated with politics and public discourse in the United States. The First Amendment protects this type of rhetorical statement.”

The truth is, whether or not Trump made a false statement about the plaintiff doesn’t much matter in this case.

Given the political context in which the Trump tweet arose, Judge Otero applied a special three-step analysis. In this situation, Daniels had to first prove the statement Trump made about “the nonexistent man” and the “con job” was actually false, which she couldn’t do. But also, she had to overcome a special constitutional protection for “statements that cannot reasonably be interpreted as stating actual facts about an individual made in debate over public matters,” a protection which exists to ensure lively debate thrives. Finally, Daniels had to show that Trump’s “opinion,” even if it implied a false or defamatory statement, was made with reckless disregard for the truth.

However, Otero wrote, even if Daniels could have proved the falsity of Trump’s statement, it obviously wasn’t intended to be taken literally. And because Trump only tweeted once, rather than issuing a sustained attack, he was simply defending himself.

Thus Trump benefited not only from being president but from the bombastic tone he is so prone to taking. His tendency to sound outraged and make wild statements make it impossible to take him literally.

So, somewhat ironically, the wilder Trump’s claims, the less likely they are to seem like factual statements, and the more evident it is that they’re the kind of hyperbolic rhetoric that the First Amendment protects. The judge states:

If this Court were to prevent Mr. Trump from engaging in this type of “rhetorical hyperbole” against a political adversary, it would significantly hamper the office of the President. 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. In short, should Plaintiff publicly voice her opinions about Mr. Trump, Mr. Trump is entitled to publicly voice non-actionable opinions about Plaintiff.

Bolstered by this decision, Trump today did just that. He tweeted about the decision to dismiss the defamation case and called Daniels a “horseface.” It was yet another wild statement by the president that makes it impossible to take what he says seriously, and which ultimately protects him from defamation claims.

Daniels, who has been ordered to pay Trump’s legal fees in the case, didn’t seem intimidated by the court’s decision or the commander-in-chief’s insults, responding in a tweet of her own:

It may not be a high-minded exchange. But it sure is “rhetorical hyperbole” and the type of imaginative expression protected by the US constitution.

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