On Monday, a federal judge a lawsuit brought by Stephanie Clifford, aka Stormy Daniels, against Donald Trump alleging that he defamed her on Twitter. While Trump’s bullying and name-calling, , are abhorrent and vulgar, it’s not surprising that Clifford’s suit was unsuccessful. Defamation is relatively hard to prove in the United States — and that’s a good thing.
The case was about Clifford’s assertion that in 2011, as she was considering going public with information about an affair she had with Trump, she was confronted by a stranger in a parking lot who told her to “leave Trump alone.” In April 2018, Clifford of the person who she says confronted her. Trump responded by that the alleged encounter didn’t happen and the whole story was a “con job.” Clifford then sued Trump for defamation, among she has taken against him and his coterie.
To prove defamation, a plaintiff must essentially show three things: that the published statement in question was provably “false” and not just an opinion, that the defendant knew it was false and published it with the intent to cause harm, and that the plaintiff suffered demonstrable injury from the published falsehood.
In the Clifford suit, Judge James Otero of the U.S. District Court for the Central District of California focused on the first point. He that President Trump’s tweet, though it referred to something that might eventually be proven true or false, was an example of “political hyperbole” — which is protected speech under the First Amendment.
The idea behind the “political hyperbole” doctrine is that exaggerated rhetoric in the context of a heated political debate is normal and perhaps even necessary in a popular democracy. Reasonable listeners understand that political figures colorfully express opinions about each other and about issues up for debate, and that rhetorical flourishes in that context should be treated differently than intentional falsehoods presented as facts.
It’s worth noting that the judge considered the back-and-forth between Clifford and Trump to be essentially political — even calling her a “political adversary” of the president. While it’s true that she and her lawyer have not shied away from weighing in on politics, it would be a worrisome precedent for the courts to assume that anyone willing to go public with damaging personal information about a political figure is by definition a “political adversary.”
But back to political hyperbole. If a political candidate, for example, were to call an opponent a “fascist” during a political debate — even with the knowledge that this was not actually true — there would be no grounds for a lawsuit, since reasonable listeners would understand that in this context, rhetorical excesses should not be interpreted as strict statements of fact. By contrast, if that candidate intentionally published a fake investigative report claiming to have proof that an opponent was involved in criminal activity as part of a violent fascist gang, a defamation claim might be successful, because a reasonable reader could interpret the report as factual.
This distinction is important. If our defamation laws were broader, and our First Amendment protections weaker, robust political debates would undoubtedly be chilled. In an , a person in Tanzania was recently sent to jail for calling the president of that country an “idiot” on Facebook. As much as we might crave more civility and truthfulness online, we can surely agree that we don’t want to live in a country where vehement political opinions involving no imminent threats are subject to litigation.
The irony, of course, is that the suit against Trump was basically dismissed because of his penchant for tweeting exaggerated rhetoric. Judge Otero wrote that “Mr. Trump’s tweet displays an incredulous tone, suggesting that the content of his tweet was not meant to be understood as a literal statement about Plaintiff … As the United States Supreme Court has held, a published statement that is ‘pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage’ cannot constitute a defamatory statement.”
So to recap: The court essentially held that the more Trump employs crude language, ALL CAPS, and multiple exclamation points in his tweets, the more obvious it is that he is not conveying the truth, and the harder it is to sue him for defamation — because no reasonable person should take him seriously.
On Wednesday, Trump from a conservative columnist who called him “the most honest president in modern history.” In dismissing the defamation suit against Trump, the court effectively said the opposite — that is, that Trump is such a blatant and shameless liar that it would be difficult for his words to harm the reputation of anyone. That sounds about right.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Free Speech
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Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
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Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.