Stormy Daniels’s Libel Suit Is Over. The Mudslinging Can Continue.

(Bloomberg Opinion) -- Not for the first time, the First Amendment has saved Donald Trump. A federal district court in California was correct Monday to dismiss Stormy Daniels’s libel suit against the president for using the phrase “total con job” to describe her allegation of being threatened by an unknown man in a parking lot.

Not only that, the judge was probably right to make Daniels (or her supporters on CrowdJustice) pay Trump’s legal fees. The president’s style of discourse, with its constant insistence that everyone else is a liar, is path-breaking in its coarseness. But it’s now legitimately part of public rhetoric. Denying Daniels’s claim (with ridicule thrown in) doesn’t come close to the kind of libelous speech that is exempt from First Amendment protection.

The upshot of the court’s decision is that Trump is now calling Daniels “Horseface,” and she’s calling him “Tiny.” It’s more than a little embarrassing to be living in an era when this passes for political discourse. But that’s one consequence of truly free speech: The words chosen can be thoroughly nasty. Good civil liberties are no guarantor of good taste.

Daniels’s libel suit, as conceived and pursued by her lawyer, Michael Avenatti, shouldn’t be confused with the separate, ongoing lawsuit over whether Daniels is bound by the deal she agreed to during the 2016 campaign with then Trump lawyer Michael Cohen not to discuss her sexual encounter with Trump.

The theory behind the libel suit was always convoluted. That’s because it ordinarily wouldn’t be defamatory for Trump to say that Daniels wasn’t telling the truth about being threatened in a parking lot to keep quiet about the affair. Litigants deny each other’s allegations all the time, in and out of court. And politicians (at least nowadays) call their opponents liars.

Stormy Daniels’s Libel Suit Is Over. The Mudslinging Can Continue.
Donald J. Trump@realDonaldTrump
A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know… twitter.com/i/web/status/9…

Sent via Twitter for iPhone.

View original tweet.

According to Avenatti, what made Trump’s tweet into libel was that if Daniels had reported a false threat to the police, that would have been a crime. Thus, the argument ran, Trump defamed Daniels by saying she was guilty of a crime.

If this sounds vaguely familiar, it should. Trump accused his 2016 election opponent Hillary Clinton of crimes as the basis of his demand/promise to “lock her up.” In fact, he’s still doing it, if recent rallies are any guide.

That chant is reprehensible, as I wrote back when the thought first surfaced. Democracy requires political opponents to alternate in power, not lock up their opponents. Even suggesting otherwise is dangerous for a candidate or a president.

But as Trump has shown by not doing anything to lock Clinton up, the reprehensible chant is just political rhetoric. It’s protected by the First Amendment, and should be. It reflects Trump’s feelings. It isn’t a true threat of imminent violence, the kind that is outside the reach of free speech. And it isn’t libel, at least not when directed at a public figure like Clinton – or like Daniels.

What’s more, Trump’s statement about Daniels didn’t even go as far as his “lock her up” chant. He didn’t say she was a felon. At most he implied it – and that’s only if you buy Avenatti’s logic.

To say in a politically charged case that an opposing litigant’s statement is a “total con job” is, alas, politics as normal nowadays. As the judge noted, finding against Trump here would curb other political speech.

If Trump can’t call Daniels a liar, he might not be able to call Clinton a liar and a felon. That would be no loss to civility. But it would be a loss to unfettered political speech.

The circumstances of Daniels’s suit should make Trump’s tweet more protected by the First Amendment, not less, as Avenatti urged.

Attorneys fees aren’t usually assessed against the losing party in federal court. But a judge has the discretion to make the loser pay if the judge finds the suit was in bad faith.

There’s a case to be made that Avenatti’s theory was in bad faith, insofar as it is hard to see how it could have won, given the free speech protections that attach to political speech. Avenatti knew that. He wanted to use the suit to draw attention to the rest of his case, and to remind people of Daniels’s allegation of a threat.

That might be strategically clever. But it still counts as bad faith if he knew he couldn’t win. The fee award therefore says something like, “Don’t threaten free speech to win points for your client.”

Trump has long been a libel bully, and it’s poetically appropriate for him to have been sued for libel. But two wrongs don’t make a right, and Avenatti’s failed bullying on libel threatens free speech as much as Trump’s.

On appeal, the fees award might conceivably be reversed. The dismissal of the case won’t be. That’s a win for free speech, the last (but necessary) refuge of a scoundrel.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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