The Vindication of Stormy Daniels

Four years after she sued Donald Trump for defamation, the pornographic actress and director Stormy Daniels has finally been vindicated. A judge may have rejected her claims at the time, but she emerged the clear winner in the court of public opinion in 2021 the second that Trump’s fixer Michael Cohen admitted to—and apologized for—paying her off to keep quiet about her 2006 sexual encounter with the former president. And now her former lawyer Michael Avenatti, after already being convicted by federal prosecutors for trying to shake down Nike, has been found guilty of stealing a portion of her book advances and lying to her about it. But even though she remains something of a folk hero for “the Resistance,” Daniels still hasn’t gotten the respect she deserves under the law. It’s disturbing to consider what this says about who is afforded legal protections—and who we can slander without consequences. It’s the problem of womanhood made manifest in the hyperbole of whoredom.

When Daniels sued Trump in 2018, it was for calling her a liar on Twitter over her claim that he’d sent a thug to threaten her into silence. “A total con job, playing the Fake News Media for Fools (but they know it)!” he tweeted on April 18.

Trump countersued her under Texas’s anti-SLAPP (strategic lawsuit against public participation) statute, which is intended to protect the speech of average people from frivolous lawsuits designed to intimidate them. As CNN’s Chris Cillizza observed at the time, “Trump on Twitter is simply using his massive bullhorn—51 million people strong—to suggest that a woman is making up a story about being harassed.” Implicitly incriminating their client, Trump’s lawyers argued that Daniels could not claim harm because, as an adult entertainer, “there is nothing about Plaintiff’s career (SIC) that requires a reputation for honesty.” They also listed the titles of some of her pornographic movies, juxtaposed against Trump’s title as president. The implication was clear: How can a woman who has sex on camera claim any reputational damage that she hasn’t already done to herself? The carve-out for sex workers under New York’s rape shield law functions essentially the same way: A woman who has been raped cannot be asked at trial about her unrelated sexual history—unless she has sex for money. Then she’s no longer a victim, but effectively a slut who can’t be raped.

The judge ruled against Daniels, but not necessarily because he thought she could not be defamed, and not because he thought her claims against Trump weren’t verifiable (an essential element in proving defamation). Instead, he determined that Trump’s lie was protected speech because it was merely “rhetorical hyperbole which has traditionally added much to the discourse of the United States.” Absurdly, he also defined Daniels as a “political adversary,” citing as precedent a case in which a candidate for the Texas Senate unsuccessfully sued his opponent for defamation, as the court found the attack ad materials insufficiently defamatory in the context of a rhetorically charged campaign. By this logic, the president of the United States and a previously obscure pornographic actress were equals in the public arena. Therefore, the judge reasoned, Daniels had failed to meet the burden of proof for showing that Trump tweeted with “actual malice,” and, furthermore, holding him to account for the lie “would significantly hamper the office of the President.”

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