3

Yesterday, 3/27/18, it was reported that the porn actress Stormy Daniels sued President Trump's lawyer Mr. Cohen for defamation because he alleged that Stormy Daniels did not have an affair with Mr. Trump.

If not, then how can they argue a defamation? Even if the allegation of the affair never having taken place is false, it is a lie which does not damage anyone's reputation (ie, it does not "defame" anyone). In fact, even if it is a lie, it seems like it is a lie which can only serve to improve someone's reputation.

Is there any precedent or law which recognizes a claim of not having an affair to be defamatory? Is there any law or precedent to make a claim that someone lied publically (but not under-oath) a defamatory claim?

Edit: this answer below shows that the claim of defamation stems from allegation that Stormy Daniels was called a liar rather than from the allegation that she did not have an affair.

In a similar vein, hypothetically, if Mr. Cohen made a public statement that Stormy Daniels was lying about being or having been an adult movie actress, would that be defamatory?

  • 1
    documentcloud.org/documents/…. Point 67: [...] it was reasonably understood Mr. Cohen meant to convey that Ms. Clifford is a liar, someone who should not be trusted, and that her claims about her relationship with Mr. Trump is "something [that] isn't true". Which is a completely different issue than the one you convey in your question. – SJuan76 Mar 27 '18 at 13:49
  • Please let me know if this answers your question (so I can post a proper answer) or if you are more interested in the precedent/probability of someone suing only because of the refusal of the affair (without bringing together the issues of implied defamation). – SJuan76 Mar 27 '18 at 13:53
  • @SJuan76, assuming everything she claims is true, why does it amount to defamation? – grovkin Mar 27 '18 at 14:20
  • Please read my previous comments and/or the lawsuit. It is not what Stormy Daniels said that brings the claim of defamation, it is what Mr. Cohen said (basically meaning that she was knowingly making false statements). And of course, it does amount to defamation is to be decided by the judge/jury (which is kind of why they are there, to begin with). – SJuan76 Mar 27 '18 at 14:27
  • 1
5

Saying "they didn't have an affair", in isolation, would not be defamation. But we have to look at the context. Daniels had previously stated publicly that they did have an affair. So when Cohen said that it wasn't true, he was (claims Daniels) effectively calling her a liar. Calling someone a liar is potentially defamatory.

You can read Daniels's complaint here. See paragraph 67:

Both on its face, and because of the facts and circumstances known to persons who read or heard the statement, it was reasonably understood Mr. Cohen meant to convey that Ms. Clifford is a liar, someone who should not be trusted, and that her claims about her relationship with Mr. Trump is 'something [that] isn't true.' Mr. Cohen's statement exposed Mr. [sic] Clifford to hatred, contempt, ridicule, and shame, and discouraged others from associating or dealing with her.

As to whether calling someone a liar is defamatory, there's a long article on the subject here. There are at least some cases where courts have held that it is.

Gutterman, Roy S. "Liar! Liar? The Defamatory Impact of 'Liar' in the Modern World." Fordham Intellectual Property, Media and Entertainment Law Journal 27 (2) 253-286, 2017.

  • And is being called a liars defamatory? If it is alleged that someone is lying while not under oath, people call each other liars publically all the time. Is there any law or precedent to make this anything? – grovkin Mar 27 '18 at 14:17
  • @grovkin: See my update. – Nate Eldredge Mar 27 '18 at 14:51
  • 1
    @grovkin: You could sue someone for calling you a liar if you really wanted. But in the US, it's not worth doing unless you make money from your reputation, not least because the award will be related to your loss. If you do it just to be a crybaby, the court will not be amused. – cHao Mar 27 '18 at 14:51
  • @cHao Besides recovery of monetary losses that ensued from the defamatory falsehoods, there are other reasons making it worth to sue for defamation. In the two defamation lawsuits I've filed, Michigan judges have been so corrupt that I still haven't gotten a dime from being defamed. Yet, bringing judicial proceedings is worth in that the evidence I obtained by deposing and subpoenaing witnesses (including a defendant) allows me to publicly denounce (with proofs) their corruption as well as the judges' moral ineptitude. Now the crooked defendant will think it twice before defaming me or others. – Iñaki Viggers Jun 9 '18 at 10:31
  • 2
    @IñakiViggers: Defamation is inherently very hard to prove in the US. All the elements have to be there; there's no crime or tort of "sorta defamation". Judges aren't "corrupt" just because you didn't convince them. – cHao Jun 9 '18 at 11:22
1

In a similar vein, hypothetically, if Mr. Cohen made a public statement that Stormy Daniels was lying about being or having been an adult movie actress, would that be defamatory?

It would be defamatory only in very specific contexts where the statement had palpable consequences that were detrimental to the "defamed" person. Here is one example: If Cohen's statement caused Stormy Daniels to be passed on for a job in the porn industry, then Stormy Daniels suffered what in litigation is known as special damages (because she didn't get the job she would otherwise have gotten). In that event, she would have a viable claim of defamation where Cohen could be ordered to pay her the income she would have earned at that job.

  • I doubt it'd be defamatory, period, as the example damages couldn't reasonably happen. A defamatory statement must be at least somewhat credible, and the sheer amount and variety of documentation out there makes the statement so obviously false as to be unbelievable. One who might believe it, is one who has no serious role in the porn industry. (If he'd said it 15 years ago, such a claim might have legs. But today it doesn't.) – cHao Jun 11 '18 at 16:13
  • @cHao A porn company could discard a candidate/actress if someone falsely alleges that the candidate "lied about being or having been an adult movie actress" when the company's policy is to hire experienced actresses only. Why do you find that unreasonable? The porn company could deem the false allegation credible, and the company has no obligation to check "the sheer amount and variety of documentation" to ascertain whether the allegation is true. – Iñaki Viggers Jun 22 '18 at 12:09
  • I find it unreasonable because (1) there is so much evidence out there, that anyone with any serious exposure to the industry has already seen at least some of it, and (2) any employer knows that people will lie about previous experience to get a job, so if experience matters, they already looked at the evidence. Oh, and (3) people in controversial industries are already used to normies lying about them, so they're not going to automatically believe an outsider's statement about one of their own. Short version: someone who fired or didn't hire her for porn, had reasons unrelated to the lie. – cHao Jun 22 '18 at 13:52

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.