What's the Difference Between the "Rhetorical Hyperbole" Used by Donald Trump in the Stormy Daniels and E. Jean Carroll Defamation Suits?
Stephanie Clifford is best known by her film name of Stormy Daniels. For convenience, I will use her film name in this article. Daniels must feel some vindication by the New York jury verdict against Donald Trump on 34 felony counts associated with a hush money payment made to Daniels to influence the 2016 election. When Daniels brought her own defamation action against Trump several years ago, she was treated shabbily by the judicial system. And the adverse result in the prior Daniels defamation suit became fodder for some biting cross-examination in the Trump criminal trial. By all accounts, Daniels held her own.
Back in 2018, Judge S. James Otero dismissed a defamation suit brought by Daniels against Trump and then imposed fees against her under a Texas anti-SLAPP statute. Daniels sued Trump over a tweet accusing Daniels of a “total con job” in claiming a man threatened Daniels and her child in a parking lot and then told Daniels to “leave Trump alone.” Trump also referred to an artist’s sketch of the person whom Daniels accused of threating her as a “nonexistent man.” Because Daniels likely was going to have trouble finding corroborating evidence for the threat after so many years, I was not shocked when the defamation suit was dismissed. But Judge Otero never really reached the merits of Daniels’ claim. Instead, the judge dismissed her suit on the theory that Trump’s “con job” accusation was just “rhetorical hyperbole” protected by the First Amendment.[1] The Ninth Circuit affirmed the dismissal in an unpublished opinion.[2]
This got me thinking about the diametrically opposite result reached in the E. Jean Carroll defamation suits. The two Carroll lawsuits resulted in total damages of $88.3 million. Both Carroll cases were presided over by Judge Lewis Kaplan. The defamation claims arose from Trump’s denial of Carroll’s accusation in mid-2019 that he sexually assaulted her at a Manhattan department store in 1995 or early 1996.[3] I appreciate the stark factual distinctions between the Daniels and Carroll lawsuits. But what ties the cases together is the same kind of “rhetorical hyperbole” used by Trump to deny the accusations of both women.
In a lengthy Truth Social post in October 2022, Trump called the “Ms. Bergdorf Goodman case a complete con job.” He declared: “I don’t know this woman, have no idea who she is….” He claimed Carroll “made up a story” that Trump supposedly “swooned” her in a New York City Department Store. And he characterized the story as a “Hoax and a lie.” Trump also accused Carroll of promoting her “crummy book,” which he described as a “complete scam.” In an appearance on CNN the day after the first jury verdict, Trump called Carroll “a whack job.” He said the trial was “rigged,” and he denied raping Carroll. He again declared: “I don’t know who the hell she is.”[4]
As I see it, the only major difference in the kinds of rhetorical hyperbole used by Trump in the Daniels and Carroll cases is how far Trump went in his personal attacks on Carroll. Judge Kaplan denied a claim made by Trump’s lawyer that the Truth Social post was a mere response to the first lawsuit and was “absolutely protected litigation speech” under New York law.[5] But to my knowledge, the rhetorical hyperbole defense never came up. I suspect this is because Trump went beyond his usual bluster and explicitly called E. Jean Carroll a liar. This false accusation subjected Trump to New York libel law.
At the time when Judge Otero dismissed the Daniels defamation suit, I wondered if rhetorical hyperbole was a legitimate defense to a defamation suit? After doing some preliminary research, I found the answer was a qualified “yes.”
The U.S. Supreme Court first recognized the “rhetorical hyperbole” defense when a newspaper reported accusations that a developer’s negotiating position was a form of “blackmail.” Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 13 (1970). The Court reasoned that the word “blackmail” in this context was “no more than rhetorical hyperbole, a vigorous epithet used by those those who considered [the developer’s] negotiating position as extremely unreasonable.” Id. at 13-14. The Court reached a similar conclusion in Letter Carriers v. Austin, 418 U.S. 264, 284-286 (1974) (holding use of the word “traitor” in defining a union “scab” was not defamatory since the word was used “in a loose, figurative sense” and was mere “rhetorical hyperbole, a lusty and imaginative expression of contempt felt by union members”). And later, the Court applied the same reasoning to protect Larry Flint from a damage suit in Hustler Magazine, Inc. v. Falwell, 485 U.S.46, 50 (1988) (holding First Amendment precluded recovery of damages for emotional distress when an ad hoc parody in Hustler Magazine “could not reasonably have been interpreted as stating actual facts about the public figure involved”).
The Supreme Court has described its Bresler-Letter Carriers-Falwell line of cases as a protection for statements that cannot “reasonably be interpreted as stating actual facts” about an individual. Falwell, 485 U.S. at 50. This provides assurance that “public debate will not suffer for lack of ‘imaginative expression’ or ‘rhetorical hyperbole’ that has traditionally added much to the discourse of our Nation.” Milkovich v. Lorain Journal Co., 497 U.S. 1. 30 (1990). But the “rhetorical hyperbole” defense did not protect a newspaper from publishing a story implying that a high school wrestling coach committed perjury in testifying about an altercation during a match with another school’s team. The Court concluded the perjury charge could be subject to Ohio’s libel law. Id. at 31-32,
In the Daniels case, Judge Otero found Trump could not be accused of factually calling Daniels a liar when Trump used his own typical rhetorical hyperbole – calling Daniels a “total con job.” Trump reacted to Judge Otero’s decision by calling Daniels “Horseface.” And Daniels retorted by calling Trump “Tiny.”[6] Did this kind of “rhetorical hyperbole” truly add much to the public discourse of our Nation? In my opinion, Judge Otero overreached in saying that a “total con job” was somehow different for First Amendment purposes than if Trump explicitly called Daniels a liar. Trump did not change the substance of his accusation by cloaking it in bombastic rhetoric.
Trump often speaks with the kind of hyperbole used against Daniels. Because of this Trump propensity, I wondered at the time if Judge Otero’s rationale might insulate the then President from liability and encourage him to defame others. At the time of the Daniels decision, Trump still was the President of the United States. And Judge Otero expressed concern about this kind of lawsuit hampering the office of the President. But since he left office, Trump has faced more accountability in the courts. And the E. Jean Carroll verdicts show that this accountability reaches charges of defamation. So “no,” Judge Otero’s rationale did not insulate Trump from liability in the later Carroll lawsuits. What bothers me is that the ultimate success of the “rhetorical hyperbole” defense in a defamation case seems to depend, at least in part, on the vagaries of the particular judge.
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[1] J. Gertsein, “Judge Dismisses Stormy Daniels Libel Suit Against Trump,’ (Politico Oct. 15, 2018).
[2] M. Macias, “Stormy Daniels Loses Appeal to Sue Trump for Defamation,” (Courthouse News Service July 31, 2020).
[3] L. Neumeister, J. Offenharrtz, and J. Peltz, “Donald Trump Must Pay an Additional $83.3 million to E. Jean Carroll in Defamation Case, Jury Says,: (Associated. Press Jan. 26, 2024).
[4] “E. Jean Carroll v. Donald J. Trump,” (Wikipedia, quoting Truth Social Post by D. Trump dated October 12, 2022, and CNN archive retrieved May 10, 2023).
[5] “E. Jean Carroll v. Donald J. Trump,” (Wikipedia, quoting Yahoo News Report retrieved Feb. 24, 2023.)
[6] A. Edelman, “Trump Calls Stormy Daniels ‘Horseface’; She Fires Back with ‘Tiny’”, (NBC News Oct. 16, 2018).
A great premiere essay, Dan.