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When Plaintiffs Lose SLAPP Suits, Who Pays? Trump's Lawyers
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When Federal District Court Judge S. James Otero dismissed Stephanie Clifford's (aka Stormy Daniels) defamation suit against President Trump, he also ordered that she be required to pay his attorneys' fees.  The defamation suit was dismissed because the judge found that a Tweet President Trump wrote was simply a "one-off rhetorical comment" and not a continuing attack on Ms. Clifford's veracity.  Judge Otero called the Tweet "political hyperbole" that is typically engaged in when political figures respond to the statements of opponents.  Clifford v. Trump. ______ F. Supp. 3d _____, 2018 WL 4997419 (2018). Michael Avenatti, Ms. Clifford's attorney, has appealed the dismissal to the Ninth Circuit Court of Appeals.  

 

Ms. Daniels had released a sketch of a man she says threatened her and her daughter because of her ongoing legal battle against Mr. Trump over a nondisclosure agreement (the NDA) she had signed in exchange for a payment of $30,000. The NDA related to an alleged affair Ms. Daniels had with Mr. Trump shortly after his son Barron was born.  Mr. Trump has denied the affair. Ms. Clifford filed suit to have the NDA set aside, and then did an interview with CBS's Sixty Minutes about that suit, therein disclosing what she had agreed to not disclose in the NDA.  

 

When the sketch of the alleged threatening man was released, Mr. Trump tweeted that the drawing was of a  “nonexistent man” and added,  “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!”  The Clifford defamation suit followed. The sketch appears to be one of Ms. Daniels' ex-husband.stormy-daniels-ex-husband-sketch-instagram-2.jpg

 

 

 

Mr. Trump's lawyers have requested $342,000 in fees, a request that will be reviewed by Judge Otero.  In the United States, the rule "loser pays" is not a universal one when it comes to attorneys' fees in litigation. However, the basis for the award of the Trump fees was in what are known as anti-SLAPP laws.  SLAPP is an acronym for Strategic Lawsuit Against Public Participation, a term coined in the legal literature in the 1980s.  Anti-SLAPP laws are statutes that permit requests for early dismissals of lawsuits that are brought against individuals that seek to interfere with their freedom of speech.  Anti-SLAPP laws also provide for collection of attorneys' fees when the suits are dismissed.  There is a model act called the Public Participation Protection Act that has been developed on the basis of the initial anti-SLAPP laws that were passed in California, Louisiana, Oregon, and Washington.  Similar statutes in Minnesota and Washington have been declared unconstitutional.  Davis v. Cox, 351 P.3d 862, 871, 874 (Wash. 2015);  Leiendecker v. Asian Women United of Minnesota, 848 N.W.2d 224 (2014) and 895 N.W.2d 693 (2017). There is a delicate balance of freedom of speech and the rights of public figures to engage in political discourse, and these types of statutes remain the subject of constitutional challenges. There is no federal anti-SLAPP statute. 

 

If there is a finding that the suit should be dismissed under an anti-SLAPP law, then the defendant is entitled under these statutes to collect reasonable attorneys' fees. The reasoning behind anti-SLAPP laws is to provide a means for quick handling of defamation disputes among public figures so that political rhetoric is not restrained through the use of defamation litigation. As Judge Otero noted, if the Clifford suit were not dismissed, the President would be restrained in responding to critics, a condition that would interfere with political discourse. 

 

DISCUSSION STARTERS

Explain the basis for the dismissal of the defamation suit.

Discuss the issues with anti-SLAPP laws.