From yesterday's Clifford v. Trump, decided by Judge Sidney Thomas, Judge Kim McLane Wardlaw and Jacqueline Nguyen:
As claimed in the complaint, Ms. Clifford started a close relationship with Mr. Trump in 2006. Five years later, in 2011, Ms. Clifford agreed to work with a magazine that wanted to publish a story about the relationship. Ms. Clifford claims that a few weeks after she agreed to contribute to the magazine, she was approached by an unknown man in a Las Vegas parking lot who said, "Leave Trump alone. Forget the story" and threatened that damage would come to her if she continued to work with the magazine. Ultimately, the story wasn't released.
In 2018, after Mr. Trump became president, Ms. Clifford went public with her report on this incident. With the help of a sketch artist, she made a composite sketch of the man from the parking lot that was publicly distributed.
Ms. Clifford's defamation claim is based on a tweet that Mr. Trump published about the composite sketch. Shortly after the sketch was released, a Twitter user who had nothing to do with the parties here tweeted the sketch next to a photo of Ms. Clifford's ex-husband, with a mocking message indicating that the two men were similar. Mr. Trump retweeted this tweet and added his own message: "A sketch years later about a nonexistent man. A total scam who plays the fake news media for fools (but you know it)!"
The two tweets were presented as follows:
Ms. Clifford responded by filing this lawsuit, claiming that Mr. Trump's tweet was defamatory.
"(S) Statements that are not verifiable as false are not defamatory. And even if a statement is verifiable, it cannot constitute liability if the entire context in which it was made reveals that it was not intended to be to claim a fact. " … (S) Statements that either fail the test – "verifiability or context" – (are treated) as "opinion (s)". The determination of whether a statement "is reasonably capable of defaming meaning" focuses on how the statement would be interpreted by an "objectively reasonable reader".
Ms. Clifford makes two arguments why the tweet in question is defamatory. First, citing Black & # 39; s Law Dictionary definition of "shop steward", the use of the term "fraud" implies that she has literally committed the crime of fraud. However, for a sensible reader, it would be clear that the tweet did not accuse Clifford of having actually committed criminal activity. Instead, the term "fraud" as used in this context could only be interpreted as a colorful expression of rhetorical exaggeration. Greenbelt Coop. Publ & # 39; g Ass & # 39; n v. Bresler (1970) (the plaintiff's description of the negotiating position as "extortion" could not reasonably be interpreted as having accused him of committing the extortion crime) …
Next, Ms. Clifford argues that the tweet is defamatory for accusing her of lying about her relationship with Mr. Trump for participating in a magazine story. We agree that this is a reasonable interpretation of the tweet, but we conclude that it cannot be implemented.
Under Texas law (which applies in this case, presumably because Daniels is based in Texas), a statement that only interprets disclosed facts is an opinion, and, as previously mentioned, opinions cannot form the basis of a defamation claim. With the eyes of an objective To reasonable readers, the tweet here reflects Mr. Trump's opinion about the effects of the allegedly similar appearances of Ms. Clifford's ex-husband and the husband in the sketch. Mr. Trump's reference to a "sketch of a nonexistent man years later" signals that the allegedly defamatory conclusion that Ms. Clifford was "cheating" and "played the fake news media for fools" clearly relates to the similarities between the sketch and the Photo of Ms. Clifford's ex-husband.
Since the tweet that juxtaposed the two images was displayed directly under Mr. Trump's tweet, the reader was given the information underlying the allegedly defamatory statement and was able to draw his own conclusions. In addition, the tweet does not imply any unknown facts. Accordingly, the tweet read in the context was an impractical statement. … "(T) There is no duty to defame an opinion if the underlying facts are presented in a report in the report itself, whereby the listener can assess the facts and either accept or reject the opinion." …
Ms. Clifford disagrees with this conclusion, arguing that the tweet is reasonably interpreted to deny not only her report of having been threatened for working with the magazine, but also her broader claim that she has a close relationship with Mr. Trump had. Constructed this way, Ms. Clifford claims that the tweet is actionable because a sensible reader would appreciate that Mr. Trump had personal knowledge of whether a relationship actually existed, so the tweet would be understood as a statement based on an undisclosed fact that Ms. Clifford had invented her report on the relationship. We do not find this argument convincing.
When assessing whether Ms. Clifford has properly asserted a defamation claim, we will initially limit ourselves to the allegations contained in the complaint. The operational complaint explicitly claims that Mr Trump's tweet was defamatory for "mistakenly attacking the accuracy of Ms. Clifford's report of the impending incident in 2011". …
More importantly, even if this theory had been properly presented, we do not believe that the tweet could reasonably be read to address Ms. Clifford's account of her relationship with Mr. Trump. The tweet did not refer to the alleged relationship, but focused on the sketch of the allegedly "nonexistent man". This was clearly a reference to Ms. Clifford's report 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 "cheating" and "played the fake news media for fools" did not refer more generally to other, unreferenced statements by Ms Clifford about the same incident alleged relationship.
Since the complaint did not provide a false false statement, the district court rightly granted the request for dismissal.
Seems right to me.