LOS ANGELES (CN) – A federal judge in Los Angeles said Monday he was leaning toward dismissing a defamation lawsuit filed by adult film star Stormy Daniels against President Donald Trump because a presidential tweet at the heart of the case is an opinion protected by the First Amendment.
U.S. District Judge James Otero also said Daniels is now a public figure suing a sitting president of the United States, and comments from Trump are expected in the political arena.
Daniels’ attorney Michael Avenatti said after the hearing, “If we do lose that case we’re going to appeal to the Ninth Circuit, because we believe we have good legal grounds to pursue that claim.”
Daniels, real name Stephanie Clifford, said she was threatened by a man in a Las Vegas parking lot in 2011 to keep quiet about an alleged affair with Trump which she planned to tell all about in an InTouch magazine story.
In April 2018, Daniels and Avenatti released an artist’s sketch of the man who supposedly threatened Daniels. A Twitter user posted the sketch next to an image of Daniels’ estranged husband and noted a resemblance between the two.
Trump replied to that image on Twitter and wrote, “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!”
Daniels sued, claiming Trump’s tweet painted her as fabricating a crime and the existence of an assailant which would be a violation of the law in several states according to her lawsuit.
On Monday, Otero read Trump’s tweet in his LA courtroom. Trump’s attorney Charles Harder then said his client’s tweets are protected by state anti-SLAPP (strategic lawsuits against public participation) laws.
Otero said he had to determine which state laws would apply in the case and noted that since Daniels lives in Texas, that state’s laws control.
But another of Daniels’ attorneys, Ahmed Ibrahim, argued discovery is necessary to find out what Trump knew about the matter.
“How are we going to find out if there was actual malice?” Ibrahim asked. “Did Mr. Trump know about this man who threatened my client?”
Ibrahim added: “The tweet is 100 percent a false statement of fact.”
Later, Otero said there is little doubt in the matter that Daniels’ lawsuit involved Trump’s free speech, because it was on an issue of public concern.
“A matter of public interest regarding a public figure,” said Otero.
Harder called Daniels a “political adversary” of Trump, and Otero noted Daniels had appeared on talk shows where she discussed the alleged threat. Trump’s tweet was protected as “political hyperbole,” said Otero.
Ibrahim said the defamation claim related to the threat made against Daniels.
“That has nothing to do with politics,” said Ibrahim.
Daniels claimed Trump’s tweet accused her of committing a crime by making up the threat from the “non-existent” man, and Ibrahim in answering Otero’s question about what crime Daniels thought Trump implied she’d committed said reporting a false crime.
Otero said it’s not a crime for one to falsely say one has been threatened – unless one files a police report saying so.
Harder argued for Otero to find the tweet protected opinion, calling Daniels’ defamation claim “a long stretch.” He said the president wrote the words “con job” but he could have written hogwash, BS or any word that was an opinion about how Daniels was trying to “fool the media.”
He added: “The president uses the words he chooses,” and his response to Daniels is part of a political feud, a give-and-take that is caught up in a political context.
Avenatti scoffed. “This was not political by any stretch of the imagination,” he said.
Otero said he is a fan of the First Amendment and previously denied a request made by Trump’s ex-attorney Michael Cohen to gag Avenatti.
The judge said allowing Daniels’ defamation claim to go further could have “a chilling effect on candidates” running for public office.
“I’m troubled there is a claim in the first place,” said Otero.
Trump wants Daniels’ defamation claim tossed, while Avenatti asked for leave to amend the complaint to “shore up the malice allegations.”
Otero took both requests under submission.