The Ninth Circuit Court held that President Donald Trump’s tweet accusing her of a “con job” was merely constitutionally protected “rhetorical hyperbole.”
The decision signed by Chief Judge Sidney Thomas and Judge Kim Wardlaw, upheld an order by District Court Judge S. James Otero of the Central District of California granting Trump’s special motion to strike.
According to Stephanie Clifford, she had an affair with Trump in 2006; and in 2011, she agreed to provide information about her affair with President Donald Trump to Touch Magazine. According to her, a few weeks after her agreement with Touch Magazine, a man came up to her in a Las Vegas parking lot, made a threat against her daughter, and admonished Clifford:
“Leave Trump alone. Forget the story.”
A police sketch artist, with the help of Clifford, produced a likeness of the man who had purportedly threatened her, and on April 17, 2018, she released the rendering.
Trump followed with a tweet:
“A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!”
Trump’s tweet contained a graphic disseminated by Twitter user “Deplorably Scottish” which contained the sketch of the man in the parking lot next to a photo of Clifford with her ex-husband, Glendon Carter. There was a resemblance of the man to her former spouse.
| President Donald Trump’s April 18, 2018 tweet. The Ninth U.S. Circuit Court held that the president’s comments were not actionable. |
Sketch Artist
The Court held that the president’s tweet is not susceptible of a defamatory meaning. It explains:
“[C]iting the Black’s Law Dictionary definition of ‘confidence man.’ she argues that the use of the term ‘con job’ implied that she had literally committed the crime of fraud. But it would be clear to a reasonable reader that the tweet was not accusing Clifford of actually committing criminal activity….Instead, as used in this context, the term ‘con job’ could not be interpreted as anything more than a colorful expression of rhetorical hyperbole….Because the tweet could not reasonably be read as asserting that Ms. Clifford committed a crime, this theory of defamation is not viable.”
Clifford also asserted that the tweet implied she had lied about having been threatened.
“We agree that this is a reasonable interpretation of the tweet, but conclude that it is not actionable,” the opinion says, elaborating:
“Viewed through the eyes of an objectively reasonable reader, the tweet here reflects Mr. Trump’s opinion about the implications of the allegedly similar appearances of Ms. Clifford’s ex-husband and the man in the sketch. Mr. Trump’s reference to a ‘sketch years later of a nonexistent man’ signals that the allegedly defamatory conclusion that followed—that Ms. Clifford was pulling a ‘con job’ and ‘playing the Fake News Media for Fools’—plainly concerns the similarities between the sketch and the photograph of Ms. Clifford’s ex-husband. Because the tweet juxtaposing the two images was displayed immediately below Mr. Trump’s tweet, the reader was provided with the information underlying the allegedly defamatory statement and was free to draw his or her own conclusions. Moreover, the tweet does not imply any undisclosed facts. Accordingly, the tweet, read in context, was a non-actionable statement of opinion.”
As to her claim that the tweet implies she is lying about having had an affair with Trump, the Court held:
“[W]e do not believe the tweet could be reasonably read as addressing Ms. Clifford’s account of her relationship with Mr. Trump. The tweet did not reference the alleged relationship and instead focused on the sketch of the ostensibly ‘nonexistent man.’ This was plainly a reference to Ms. Clifford’s account of having been threatened by a man in a Las Vegas parking lot. It follows that the statement in the following sentence that Ms. Clifford was pulling a ‘con job’ and ‘playing the Fake News Media for Fools’ was referring to statements by Ms. Clifford about the alleged relationship.”
Clifford received $130,000 prior to the 2016 election for signing a nondisclosure agreement concerning the purported affair.
“Ms. Clifford has directed us to proceed to seek further review by the 9th Circuit, en banc. If that effort fails we will likely seek review by the Supreme Court.