Friday, October 19, 2018

"Horseface," "Tiny," and "Rhetorical Hyperbole" in the Stormy Daniels Case

by Michael C. Dorf

Earlier this week, Federal District Court Judge S. James Otero issued an order dismissing the defamation lawsuit by Stephanie Clifford, aka Stormy Daniels, against Donald Trump. After Clifford had said that in 2011 she was threatened by a man who worked for Trump or then-Trump-attorney Michael Cohen, Trump tweeted that the threatener was "nonexistent" and that Clifford's story was "a total con job." Clifford sued Trump for defamation on the ground that calling her a liar was, well, defamatory. Judge Otero dismissed the suit. He did not say that Trump was right. Instead, the judge said that Trump's statements were not to be evaluated under ordinary standards of truth, because they were mere "rhetorical hyperbole" that a reasonable person would not expect to be true as such. I think that's probably wrong.

The term "rhetorical hyperbole" first appears in a 1970 SCOTUS case construing the First Amendment limits on defamation liability. A newspaper published reports that a real estate developer (who was also a state legislator) had been described as engaging in "blackmail" in negotiations over the price of a property he was selling. The developer sued the publisher for defamation. The Court ruled that the term "blackmail" was not meant to be taken literally and therefore the First Amendment barred defamation liability under such circumstances.

That principle seems sensible enough, and it has application in one aspect of the dispute between Clifford and Trump. Celebrating his victory earlier this week, Trump referred to Clifford in a tweet as "Horseface."  Clifford tweeted back, referring to Trump and by clear implication, Trump's penis, as "Tiny."

Each of these tweets has some truth value. One might conduct a survey about faces to see whether Clifford's face looks especially equine. Likewise, one might try to calculate how poorly endowed Trump is. But it would be preposterous to entertain a defamation lawsuit by Clifford claiming that she doesn't have a horselike face or by Trump claiming he has an average-or-larger-sized penis. "Horseface" and "Tiny" are classic examples of rhetorical hyperbole.

However, the case that Judge Otero dismissed earlier this week did not concern Horseface or Tiny. It concerned Trump's implicit but unmistakeable contention that Clifford lied when she said she was threatened by an agent of Trump or Cohen. That does not seem remotely rhetorical. Trump pretty clearly intended to say that Clifford was lying and hoped that he would be taken seriously.

Why then, did Judge Otero dismiss the suit? His core argument is that Clifford is in a political dispute with Trump. He doesn't spell this out quite fully enough, but I think I can make some sense of the claim with an analogy.

Suppose it's October 2020 and Trump is debating Democratic presidential nominee Elizabeth Warren. If during the debate Trump refers to Warren as Pocahontas, that statement has no truth value whatsoever and so can't be defamatory (although it's obviously offensive). But suppose that Trump makes a false statement of fact about Warren. Suppose he says "under the Pocahontas Medicare for All Plan, the government would take over your health care." Warren would most likely say that's not true; that just as in the existing Medicare program, under her plan the government would pay but patients would receive treatment from private doctors, hospitals, and networks. Suppose that Trump interrupts and says "she's lying. She wants a government takeover of health care." I take the gist of Judge Otero's opinion to mean that even though Trump's claim in such circumstances that Warren is a liar has a truth value--it's false--it is nonetheless protected political speech. And I agree with that. If, after the debate, Warren were to sue Trump for calling her a liar during the debate, a court should dismiss the suit on the ground that--in the context of a political debate--the First Amendment renders certain statements that are factually false protected political speech that cannot give rise to defamation liability.

So far so good. Where I get off this train is where Judge Otero treats Trump's statements about the alleged threats as part of a political debate. So far as I can tell, his reason for doing so is that Clifford is a critic of Trump and Trump is president. But if that's the standard, then a president can never be found liable for defamation. Perhaps a court should fashion such a rule--thus overruling Clinton v. Jones--but that's not the current law. It makes sense to broaden the category of protected "rhetorical hyperbole" when political speech is involved, but it goes too far to treat the statements at issue here--about whether pre-presidency Trump's agent threatened Daniels--as political speech.

At least that's my view of the First Amendment. There's a further wrinkle in the case, however. Judge Otero does not exactly say that Trump's statements are protected rhetorical hyperbole under the First Amendment. Rather, he says that Texas defamation law would deem the statements protected rhetorical hyperbole.

[Aside: Why Texas law? The case was originally brought in federal district court in New York, then transferred to the Central District of California following a motion for a change of venue. In such circumstances--where the original venue was proper but the transferee venue is preferred--the transferee court applies the choice-of-law principles that the transferor court would have applied. Here, because the case is in federal court due to diversity of citizenship, that means applying the same body of choice-of-law principles as a state court in New York would apply. According to Judge Otero, application of New York choice-of-law principles leads to the application of the substantive law of Texas, where Clifford is a resident. If you didn't follow that, you should retake civil procedure or, if you never took it, go to law school now. Or just ignore this whole aside. Anyway, as I was saying . . .]

Judge Otero seems to think that the Texas courts have a distinctive principle of "rhetorical hyperbole" that is embedded in state law. He cites almost exclusively Texas cases about the scope of the principle.

The federal Constitution places limits on state defamation law. However, the federal First Amendment is a ceiling, not a floor. Thus, a state can, if it wishes, deny recovery to a defamation plaintiff in circumstances in which the federal First Amendment would allow recovery. It's thus possible that even though the First Amendment would not treat Trump's statements as protected rhetorical hyperbole, Texas nonetheless would disallow liability--either as a matter of Texas tort law or because the Texas courts treat the Texas constitution's protections for free speech as broader than the parallel federal provision in the First Amendment.

All of that is possible, and if it's true, then Judge Otero would be right to dismiss Clifford's lawsuit.

But here's the thing: I looked at the Texas cases Judge Otero cites. In some of them, the phrase "rhetorical hyperbole" appears followed by citations of only other Texas cases, but if you follow the trail of citations back, you inevitably come to SCOTUS First Amendment cases. That pretty strongly suggests to me that the Texas courts do not believe that Texas has a more defendant-friendly body of defamation law than the federal Constitution requires; it suggests instead that Texas simply has a fair number of cases construing the federal First Amendment's "rhetorical hyperbole" limits on its defamation law. The Texas cases that discuss and define "rhetorical hyperbole" do so as a matter of the Texas courts' best attempt to construe the federal First Amendment, not any distinctively Texan body of law.

But here's the other thing: The Texas courts are no kind of binding authority on a federal district court in California when it comes to the meaning of the First Amendment. Only the SCOTUS and the Ninth Circuit are. So Judge Otero was likely mistaken in looking to Texas case law to discover whether Trump's tweet was mere rhetorical hyperbole that cannot give rise to defamation liability. He ought to have looked to Ninth Circuit and SCOTUS cases. And as I've already explained, under the best reading of the SCOTUS cases (uncontradicted by the leading Ninth Circuit cases I perused), Trump's calling Clifford a liar was not protected rhetorical hyperbole.

QED.

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Postscript: There are other potential problems with Judge Otero's opinion, most prominently his application of the Texas anti-SLAPP provision, which led him to address the case on a motion to dismiss rather than at summary judgment after discovery and also led him to order Clifford to pay attorneys' fees. There is some reason to think that a federal court sitting in diversity ought to be guided by federal procedural law on such matters. But I leave these issues to others.