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.”
By speaking up and refusing to be slandered as a liar by the president, Daniels apparently disqualified herself from personhood, becoming a political actor, thus entitling her to less protection.
It’s an all-too-familiar dynamic we see playing out today when women (and some men) speak publicly about misconduct or abuse. Like Daniels, they can expect to be branded as liars, lacking credibility, character, or standing. This outspoken pornographic actress exemplifies the problem Mary Beard identified in her 2014 essay “The Public Voice of Women”: “A woman should as modestly guard against exposing her voice to outsiders as she would guard against stripping off her clothes.”
The act of using one’s voice transforms any woman into a whore. That means it’s open season to attack you, limit your speech, and punish you for opening your mouth in the first place. Five years after #MeToo erupted, we’re seeing fresh examples of all three. The ex-governor of New York, Andrew Cuomo, has been having a months-long media tantrum aimed at impugning the integrity of his victims. From digging up one woman’s college records (supposedly to prove a pattern of targeting men) to trying to distract from the facts of his own case by waving around contested testimony that another of hisrs engaged in sexual acts with her direct boss, it’s been a nonstop barrage of character assassination. And in January the University of Michigan agreed to pay $490 million to settle a case involving 1,000 people who were sexually abused by a now-deceased doctor, muzzling them with a clause to cease their political advocacy. Despite flattering the university for finally doing right by the victims, the settlement prohibits them from advocating for two bills being considered by the Michigan Legislature that would make it easier for other victims to sue the university.
Silence is literally the price for speaking up. It’s why Felicia Sonmez, a Washington Post Reporter, is suing her employer. When she disclosed to her bosses that she had been sexually assaulted, the paper barred her from covering stories of sexual violence—such as the Brett Kavanaugh hearings—because of her supposed bias. Her professional punishment was rescinded after a public outcry, but it was part and parcel of how abusers like Cuomo and Trump portray their accusers as untrustworthy.
I asked Daniels to comment on this column, but she said she couldn’t until after the Avenatti trial concluded, presumably so as not to jeopardize her integrity as a witness. She made one appearance on CNN—which Avenatti then tried to use as grounds for a mistrial—where she spoke to his attacks on her credibility, given her profession: “It basically is a free license to commit crimes against us and get away with it, and that’s really terrifying.”