This will probably crack you up, but it’s also a rather brilliant primer on anti-SLAPP laws and dépeçage by noted First Amendment attorney Marc Randazza.
It all started earlier today when Stormy Daniels‘ loudmouth publicity-chasing attorney Michael Avenatti filed in the U.S. District Court for the Southern District of New York a defamation suit against President Donald Trump on behalf of his client, Daniels. See Clifford v. Trump, Case No. 1:18-cv-03842 (S.D.N.Y. Apr. 30, 2018), (the complaint is reproduced in full, at the bottom).
Through Avenatti, Daniels alleges that Trump defamed her and damaged her reputation when he tweeted on April 18 that a forensic sketch of a man that Daniels says threatened her was a “con job” and wrote that the sketch depicted “a non-existent man.”
Daniels claims that as a result of Trump’s allegedly defamatory tweet she suffered financial damages of at least $75,000.
If this sounds ridiculous to you, that’s because it objectively is. It’s positively moronic. Stormy is a public figure and Trump was giving his opinion on a well-publicized dispute.
Trump is, of course, Daniels’ legal adversary; she has filed suit against him and his personal attorney. You’d be hard-pressed to find a legal opponent who does not claim the other side is lying.
One could also say that Avenatti’s tweet today is more defamatory than Trump’s!
Randazza tweeted Avenatti, in Marc’s inimitable style:
Marc then dashed off an essay that most attorneys and legal analysts would have had to labor over for days and still not reach Randazza’s level of fluency.
It was published at Popehat.com (an essential blog), and is worth reading in full.
Here is a key excerpt explaining “why Trump most likely can invoke the Texas Anti-SLAPP statute,” against Texas resident Daniels even though the case was filed in a federal court in New York.
Stormy lives in Texas, which has a strong Anti-SLAPP statute. . . the Texas Citizens Participation Act (“TCPA”). Similar to the California and Nevada Anti-SLAPP statutes, the TCPA allows a defendant to bring a special motion to dismiss any claim that “is based on, relates to, or is in response to the party’s exercise of . . . the right to free speech.” If the motion is granted, the court is required to grant the defendant’s costs and attorneys’ fees, as well as impose sanctions against the plaintiff (citations omitted).
Stormy’s claim is based on Trump’s exercise of his free speech rights. Trump was writing on a public forum about a highly publicized dispute. The dispute would have been a matter of public concern anyhow, but Clifford and her attorney have fluffed the public relations value of this case like nobody has fluffed anything since the invention of Viagra (which made the fluffery sciences as a porn career go the way of the buggy whip).
The Southern District of New York has subject matter jurisdiction over Clifford’s claims because the parties are citizens of different states and she is alleging damages of over $75,000; this basis for subject-matter jurisdiction is called “diversity jurisdiction.” In diversity cases where there is a conflict between the laws of the states of the parties, the federal court has to determine which state’s laws to apply. New York federal courts will use a multi-factor test to determine which state has the “most significant relationship” to the legal dispute, and will use that state’s laws.
To make things even more complicated, choice of law is determined on an issue-by-issue basis, meaning that the court could decide that Texas law should apply for some issues, while New York law should apply for others. . . . This issue-by-issue determination is known as dépeçage. When you say dépeçage, you should yell it out really loud followed by “motherfucker!”
Do it for me: DÉPEÇAGE MOTHERFUCKER!
For the purposes of Stormy’s case, Trump is a citizen of New York. Courts presume that the state where the plaintiff’s injuries occurred is the state with the most significant relationship to the suit. That means there is a strong argument for Texas law to be applied.
In his tweet to Avenatti, Randazza cited the decision in a 2015 federal case from Florida, Tobinick v. Novella, which Randazza himself handled at trial and at its affirmation before the 11th Circuit. In that case, Randazza elaborated today, “the court found that because the California plaintiff could only have felt harm from the allegedly defamatory statements in California, where it was located and [worked], California had the most significant relationship with its claims.”
The other case Randazza tweeted at Avenatti is Adelson v. Harris, which was decided in 2013 and, like Daniels’ defamation suit, was also brought in New York’s Southern District. In that case, plaintiff Sheldon Adelson filed a defamation action in New York federal court against a D.C. citizen.
“Sound familiar?”, quipped Randazza.
The defendant had sought to apply D.C. law, but the court found that Nevada, as the plaintiff’s home state, had a greater interest in protecting its citizens from tortious conduct. So, the court instead applied Nevada’s Anti-SLAPP statute, allowing the defendant to dismiss Adelson’s action and win an award of attorneys’ fees. The Second Circuit affirmed that decision last year.
In Stormy’s case, Texas has two primary interests: (1) protecting its citizens from tortious conduct, and (2) preventing its citizens from filing meritless lawsuits aimed at expressions of free speech. New York, on the other hand, has an interest in protecting the free speech rights of its citizens. Using dépeçage (motherfucker!), it is most likely that the federal court will use New York law to determine whether Trump’s statements constitute defamation (since New York’s Constitution is especially protective of free speech), but allow Trump to use the TCPA. After all, applying the TCPA would actually further New York’s interests, rather than contravene them, and there is not much of an argument for a Texas plaintiff trying to run away from her home state’s Anti-SLAPP law.
Put in layman’s terms, based on precedent, Avenatti’s “stupid” lawsuit was a very bad idea indeed.
“It is possible that Stormy may find a way to defeat an Anti-SLAPP motion if Trump files one, but I find this improbable,” reasons Randazza.
“The more likely outcome is that Trump will prevail on the motion and get an early win, depriving Stormy of the ability to conduct much meaningful discovery and putting her on the hook for fees incurred by (presumably) high-priced defense attorneys.”
The Stormy Daniels defamation complaint (note also the potshot at Daniels’ ex-husband Mike Moz, whom Daniels was arrested for battering in 2009):