How can an allegation of NOT having an affair be a defamation? 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?
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.
In the united-states, attorneys are almost never placed under oath. Their statements -- whether they are assertions of fact or legal arguments -- are not evidence, and they are not subject to cross examination. There are limited circumstances in which an attorney would be competent to present actual evidence. In such cases, the attorney would be sworn in as a witness and subject to cross examination, but the attorney would likely also be disqualified from acting as an attorney in such a situation under Model Rule 3.7.
Your question is essentially this: consider a defamation lawsuit in which A alleges that B falsely stated that A did X (and it is not contested that B made the statement) also consider that B has done X in the past is it of any relevance to A's defamation suit that B has done X in the past canada Evidence must be relevant to a live, material issue In order for evidence to be admissible it must be &quot;relevant to a live, material issue in the case&quot; (this is from a dissent, but there is no disagreement about this point). Stage 1: Did B make a defamatory statement about A that was published - no relevance to this issue Defamation is prima facie proven if B's statement was published and if it tended to lower the reputation of A. The fact that B has done X in the past is irrelevant to this aspect of the analysis, especially when the defendant is not alleging that they did not say &quot;A did X.&quot; Stage 2: Defences - there is a very narrow path for relevance on this issue Once defamation is prima facie proven, the burden flips to the defendant to establish a defence. Of all the possible defences, the only one in which I could see B having done X in the past being relevant is the defence of fair comment: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. The fact the B has done X in the past could be relevant to this defence if B were to use that familiarity with the activity X as part of the commentary on why they believe that A has done X. It could also be relevant (not on its own, but along with much more context) for an allegation of malice on B's part. Conclusion: Evidence that B did X in the past would likely not be relevant I see it very unlikely that B having done X in the past would be relevant. It would likely be treated as a collateral issue, unless B's credibility somehow became absolutely central to the litigation and if the judge was convinced that such acts relate to credibility. On the facts as described, and even for a fair comment defence, I don't see that being the case.
The legal definition of the most straightforward form of fraud (a direct fraudulent misrepresentation) is that the guilt person: Says something that is not true about a presently existing material fact which is not an opinion; With the intent that someone else rely upon that statement to their detriment; They do indeed rely upon that statement; Their reliance is justifiable; and Their justifiable reliance causes them damages. A promise broken is not fraud unless it was made with a present intent not to fulfill the promise. Generally, a statement about the future cannot be a basis for fraud unless it clearly implies something about a presently existing material fact that is not true. In lieu of a fraudulent misrepresentation, there can also be fraudulent concealment which involves an omission of a presently existing material fact under circumstances when there was a duty to disclose it, with an intent to mislead that does justifiably mislead and causes damages. Lots of lies don't qualify as actionable fraud including: Statements about immaterial facts. Statements of opinion (e.g. the house is worth $300,000) or about one's feelings. Promises about the future that you intend to keep and then don't. Predictions that don't pan out. Statements made believing, inaccurately that they are true. Ambiguous statements that are taken the wrong way and do mislead but weren't intended to mislead. Statements that weren't intended to be taken seriously or relied upon. Lies that aren't relied upon or that a reasonable person wouldn't have relied upon. Lies that don't cause economic harm, including lies that are disavowed before they cause economic harm. This includes lies told with the belief that they are in the best interests of a person who could be harmed by the truth (e.g. a child or a mentally unstable person or some who is so fragile that the truth could trigger physical harm). Lies that are relied upon an unintended recipient (e.g. you lie to a prospective business partner at dinner about something related to a business deal and someone who eavesdrops on the conversation relies upon it). Some lies told on behalf of and solely in the name of someone else (e.g. a false statement of a prospectus for an investment published solely in the name of the company offering the investment without attribution of who wrote it). Lies that are mandated by another greater legal duty (e.g. lies by a spy, a diplomat, a cop trying to catch a criminal - but not a prosecuting attorney, by a soldier).
tl;dr No, N.Y. Times v. Sullivan established the actual malice standard in the context of defamation. It is not illegal for a public figure to claim the sun revolves around the Earth unless some other law intervenes (maybe something fact-dependant like fraud or lying under oath). Background Here's an example of how N.Y. Times would work in California. Under California law, slander, along with libel, are the defamation torts. See Cal. Civ. Code. § 44. The First Amendment limits California’s slander law by requiring public figures prove actual malice when they want to sue someone for defaming them. Khawar v. Globe Int’l, 19 Cal. 4th 254, 262 (1998). (The Supreme Court got involved in N.Y. Times in the first place because of the First Amendment implications on the States' defamation laws.) In turn, "actual malice" means a statement was made "with knowledge that it was false or with reckless disregard of whether it was false." Khawar, 19 Cal. 4th at 275 (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). As to knowledge, California courts consider only actual—not constructive—knowledge. Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 398 (2001). In turn, actual knowledge "consists in express information of fact." I.E. Assoc. v. Safeco Title Ins. Co., 39 Cal. 3d 281, 285 (1985). This is a bunch of lawyer-speak, but it basically sets up a pretty high bar for the public figure who is trying to prove defamation. Again, N.Y. Times doesn't have to do with barring public figures from making non-defamatory false statements. You'd have to look to other areas of law about false representations or lying under oath for a claim against the politician. california
Not disclosing transgender identity is not a crime of any kind, not rape, not fraud, not anything else. There is really no qualification to this statement. There is pretty much no plausible scenario in which concealing a transgender identity leads to liability for fraud of any kind and this never constitutes rape by deception. What is a crime and is regularly prosecuted, is retaliating against the person or property of someone who they discover is transgender while having sex. Incidents like these happen with some frequency and they alway create criminal liability for the person retaliating and never for the transgender individual in the cases where the transgender individual isn't killed (dozens of time each year in the U.S. the transgender individual is killed in a situation like this one).
As far as I know, every jurisdiction in America limits perjury to cases of lying under oath. Because it seems unlikely that the driver would be under oath at this point, you would probably lack probable cause to make an arrest. At the same time, many states have separate laws addressing the making of false reports, lying to an officer, etc. I'd imagine most jurisdictions would have a law supporting an arrest for lying at the scene, even if not for perjury.
The MGM movie Rasputin and the Empress implied that the real person Princess Irina Yusupov, as represented by Princess Natasha in the film, was raped by Rasputin. She sued for defamation, the jury agreed, and MGM paid out plus edited the scene out of the film. Subsequently, the &quot;everybody is made up&quot; disclaimer has been standard albeit not universal, especially when events are similar to reality. Star Trek is clearly not intended to be real, so &quot;false claims&quot; would not be defamation. But when a movie could reasonably be taken to be a representation of facts, it becomes important to make clear that it is not a representation of facts. Otherwise, a false claim that Mr. X did something bad could be the basis for a defamation lawsuit. It is not bulletproof protection against a lawsuit. The movie The Idolmaker was apparently too realistic, and Fabian Forte filed a big lawsuit, and settled out of court (so we don't know if the disclaimer would have been deemed by the court to be legally empty).