(Photo by Chip Somodevilla/Getty Images)
As you probably recall, Donald Trump has repeatedly talked about “opening up our libel laws” and making it easier to sue people for defamation “and win lots of money.” As we pointed out when he first raised this issue, while Trump cannot directly impact libel laws (which are state laws, not federal, and are bounded by the 1st Amendment, which he cannot change), he can have an impact in many other ways — from appointing judges to blocking any attempt at a federal anti-SLAPP law that would protect people from bogus defamation lawsuits.
So, back in the fall of 2018, we found it mildly amusing to see Trump himself using an anti-SLAPP law to successfully defeat a (highly questionable) defamation lawsuit from Stormy Daniels. Even more surprising was that Trump was represented in this case by lawyer Charles Harder, who has built up quite a reputation for suing media companies on behalf of the rich and powerful. As many people know, he was the lawyer in the case against us at Techdirt, in which he argued against the application of California’s anti-SLAPP law to get us out of the lawsuit and to award us legal fees. An old Hollywood Reporter profile of Harder described how he, too, hoped to change the standards for defamation and make it easier to sue:
“I think the actual malice standard is too stringent,” says Harder, perhaps previewing how a Donald Trump administration might approach the media and the laws governing it. “If you look at Justice [Byron] White’s opinion in a Supreme Court case 20 years after New York Times v. Sullivan, he wrote a dissent and said we all made a mistake, that it has gotten to a point where it has created huge problems for a public figure who is defamed to do anything about it.”
That profile also noted that Harder was well aware of the different anti-SLAPP laws in different jurisdictions:
In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases. The Hogan suit took place in Florida, where a jury might be friendlier to a local celebrity. The Heard case was in Nevada before it was dropped. Melania’s lawsuit is proceeding in Maryland, which some legal experts speculate is because of its plaintiff-friendly rules that won’t require her to pay the Daily Mail’s legal bill if she loses.
In the case against us, Harder argued that the use of words like “liar” and “fake” constituted defamation. However, as Trump’s lawyer defending him from Daniels’ claim of defamation, Harder noted:
It does not matter that the President used strident language (“nonexistent,” “con job,” and “fake news”) in expressing his opinion doubting the veracity of Plaintiff’s allegation rather than using more genteel terminology. Rhetorical hyperbole is not actionable as defamation…. Courts throughout the United States have routinely held that terminology similar to that used by the President is constitutionally protected opinion and non-actionable.
[….]
Indeed, since the founding of our republic, politicians have often expressed their opinions by branding their opponents as “liars.” Doing so does not subject every such politician to a defamation claim. President Trump himself has expressed his opinions regarding multiple adversaries, sometimes referring to his opponents by colorful names such as “Lyin’ Ted” and “Crooked Hillary.” A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.
And… in that instance, I completely agree with Harder and Trump, even though it would seem to contradict his argument in the case against us. But, hey, I guess zealous defense of your clients doesn’t always require consistent arguments.
Along those lines, the case between Daniels and Trump continues, and Harder is now in the position of singing the praises of California and Texas’s anti-SLAPP laws, because that’s what helped Trump succeed against Daniels.
A key issue that has come up in the Daniels/Trump suit is one that various courts have differed on over the years: whether or not state anti-SLAPP laws can be used in federal courts. The various circuits are split on this issue, with some arguing that anti-SLAPP laws are procedural, and state laws cannot regulate federal rules of civil procedure, while others ague that the law is substantive, and thus can be applied in federal court. What makes things even more tricky is that while the Daniels/Trump suit is taking place in California, the anti-SLAPP law used was the Texas Citizens Participation Act (TCPA). And while the 9th Circuit (which covers California) has said that state anti-SLAPP laws (like California’s) are substantive and thus can be used in federal court, just recently the 5th Circuit went the other way, and said that the TCPA is procedural, and thus cannot be applied in federal court. I think this is a bad and problematic ruling, which at the very least shows us the need for a federal anti-SLAPP law.
Either way, this leaves the Daniels case in a weird sort of nowhere land — and on appeal Harder needs to argue that the TCPA can apply in federal court in California, even if it can’t in Texas. And his argument is to point to 9th Circuit precedent regarding California’s anti-SLAPP law:
At the hearing (see the video recording here), Harder called Texas’ anti-SLAPP statute a “substantive” change (rather than a procedural one), and added it was virtually identical to California’s anti-SLAPP statute, which has repeatedly been affirmed by the Ninth Circuit. He then quoted Wardlaw in Makaeff v. Trump University when she wrote, “Through anti-SLAPP laws, the legislatures of Arizona, California, Guam, Hawaii, Nevada, Oregon, and Washington have decided to impose substantive limitations on certain state law actions. Refusing to recognize these limitations in federal court is bad policy. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.”
It’s pretty incredible to have Harder making that argument, but hey, Charles, welcome to team pro free speech and against frivolous defamation lawsuits. The more, the merrier.
The appeals court panel did point out to Harder that if the case had been brought in Texas federal court, under the recent 5th Circuit ruling, he wouldn’t be allowed to use the TCPA, and Harder’s response was basically that since the case was filed before that ruling, perhaps the 5th Circuit would have ruled otherwise if it was a different case (or this case) up for review:
“The only reason is, had you brought this case in Texas federal court, you would not have this motion available to you, right?” asked Wardlaw.
“At the time we filed it, the Klocke decision had not come about,” answered Harder. “If our case had preceded the other one, perhaps the Fifth Circuit would have been persuaded otherwise. I don’t know.”
And then, as the Hollywood Reporter notes, Harder defended strong anti-SLAPP laws in federal court, warning that otherwise lawyers might go forum shopping (?!?):
Harder then made the point that without federal court application of anti-SLAPP statutes, plaintiffs would “forum-shop” their suits into such jurisdictions in order to gain advantage. Said Harder, “This court correctly recognized that if the legislature wants to get rid of SLAPP suits, you apply the SLAPP statutes everywhere they can be applied including in federal courts. Klocke wasn’t looking at forum shopping. I think it missed an important point.”
Remember, this is the same lawyer who keeps charts of different forum rules and has a history of filing his lawsuit strategically — frequently in places with no or weak anti-SLAPP laws.
Anyway, as I noted when Harder/Trump initially won this ruling, I think it’s the right ruling and I’m actually happy to see that Harder and Trump find themselves in a position of supporting free speech and good, effective, anti-SLAPP laws — though I’m skeptical if they believe it applies beyond situations in which they, themselves, have immediate benefit.
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