To recap the circumstances surrounding this case, Clifford is a porn star who had an affair with Donald Trump. In May of 2011, she agreed to cooperate with In Touch Magazine in connection with an article about her relationship with Mr. Trump. She agreed to speak to the magazine after her ex-husband approached the magazine without her approval. Several weeks later she says she was approached by a man who threatened herself and her daughter. The man said, “Leave Trump alone. Forget the story.”
Ms. Clifford later worked with a sketch artist to render a sketch of what the man who made the threat looked like. Ms. Clifford released the sketch on April 17, 2018. The next day, Mr. Trump, from his Twitter account, posted a purportedly false statement regarding Ms. Clifford, and her account of the threatening incident. Mr. Trump's tweet stated: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"
Clifford filed a defamation lawsuit against Trump. She argues that the tweet attacks the truth of her account of the threatening incident and suggests that she is falsely accusing an individual of committing a crime against her. In other words, Trump is saying she “is a liar, someone who should not be trusted, that her claims about the threatening encounter are false, and that she was falsely accusing the individual depicted in the sketch of committing a crime, where no crime had been committed."
Ms. Clifford alleges that Mr. Trump acted with actual malice in issuing the tweet because he knew the falsity of his statement because the person who threatened her acted at the direction of Mr. Trump or Mr. Trump's attorney, Michael Cohen.
If the lawsuit was allowed to proceed, Trump could be compelled to testify under oath which might create a dilemma for him, just like it did for Bill Clinton when he was sued by Paula Jones. Whether a president has immunity from a civil suit for actions before taking office and unrelated to his office, was decided by the Supreme Court in Clinton v. Jones. In a unanimous opinion by Justice John Paul Stevens, the Court ruled that separation of powers does not mandate that federal courts delay all private civil lawsuits against the President until the end of his term of office. Therefore, if Clifford’s suit against Trump is able to proceed, he might face a dilemma. If he lies under oath, he commits perjury. If he tells the truth, well that might be embarrassing.
A defamatory statement is one that is both false and that tends to “harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Usually statements that are “merely unflattering, annoying, irksome, or embarrassing, or that hurt only the plaintiff’ s feelings” do not support a defamation claim. Humor or parody is generally protected by the First Amendment and is considered a form of protected opinion. There is no libel when the material is clearly understood as parody, satire, humor, or fantasy and is not capable of a defamatory meaning. Similarly, statements that reflect a point of view, or opinion, rather than specific allegations of fact are not considered defamatory. “Vigorous epithets,” “rhetorical hyperbole,” “loose, figurative language,” or “lusty and imaginative expressions” are also not considered defamatory.
In one case, cartoonist, Paul Conrad of the Los Angeles Times was sued by Los Angeles Mayor Sam Yorty for a cartoon lampooning his desire to be appointed to President Nixon’s cabinet. The caricature depicted him as he is about to be placed into a strait jacket and taken by medical orderlies. The caption read, “I’ve got to go now … I’ve been appointed Secretary of Defense and the Secret Service men are here!” Although the court held that a cartoon could be libelous if it presented as fact defamatory material which is false, it found the cartoon to be “no more than rhetorical hyperbole, a vigorous expression of opinion by those who considered Mayor Yorty’s aspiration for high national office preposterous.” As such it was a form of protected editorial comment which was not reasonably susceptible to a defamatory meaning.
One court held that the “lunacy of the statements themselves” was a factor in finding the statements not defamatory as a matter of law. Rhetorical hyperbole is part of the larger opinion-fact distinction in defamation law. To be defamatory, a statement must be one of fact. Consequently, neither statements of opinion, which do not imply assertions of fact, nor statements that are not to be taken literally, such as rhetorical hyperbole, are considered defamatory.
In dismissing Stormy Daniels suit, the court held:
Mr. Trump's tweet served as a public rejoinder to allegations made by Plaintiff. If this Court were to prevent Mr. Trump from engaging in this type of "rhetorical hyperbole" against a political adversary, it would significantly hamper the office of the President. Any strongly-worded response by a president to another politician or public figure could constitute an action for defamation. This would deprive this country of the "discourse" common to the political process. In short, should Plaintiff publicly voice her opinions about Mr. Trump, Mr. Trump is entitled to publicly voice non-actionable opinions about Plaintiff.
Clifford’s attorney has filed an appeal seeking to overturn the dismissal.
You can read the judge’s opinion here.
 Clinton v. Jones, 520 U.S. 681 (1997).
 Salek v. Passaic Collegiate School, 255 N.J. Super. 355 (N. J. Super. Ct. App. Div. 1992).
 Yorty v. Chandler, 91 Cal. Rptr. 709, 715 (Cal. Ct. App. 1970).
 Frank v. National Broadcasting Co., Inc., 506 N.Y.S.2d 869, 875 (N.Y. App. Div. 1986).