In Defense of the Porn Star

Former New York City Mayor and current presidential lawyer Rudy Giuliani created another round of unflattering headlines for himself last week regarding comments he recently made about Stormy Daniels. In case you’ve been living under a rock, Daniels (real name: Stephanie Clifford) is the adult-film actress who claims to have had a sexual encounter with Donald Trump in 2006 and was paid $130,000 by another Trump attorney, Michael Cohen, to keep silent about the affair. In 2011, Daniels discussed the affair during an interview with In Touch magazine, which ultimately declined to publish the interview after Cohen threatened the magazine with a lawsuit. At the same time, Daniels claims that she and her infant daughter were approached by a strange man in a parking garage who threatened her unless she stopped speaking publicly about Trump. In April 2018, Daniels revealed a police sketch of the man who allegedly threatened her. In response, President Trump tweeted: “A sketch years later about a nonexistent man. A total con job,” alleging that Daniels lied about being threatened. As a rejoinder, Daniels sued President Trump for defamation- claiming that he used his position as President of the United States to impugn her integrity and to accuse her of a crime (falsely accusing a man with threatening her).

All this background brings us back to Rudy Giuliani. At a conference in Israel, Giuliani opined on the Daniels lawsuit with the following comments:

“But I’m sorry I don’t respect a porn star the way I respect a career woman or a woman of substance or a woman who has great respect for herself as a woman…So Stormy, you want to bring a case, let me cross examine you. Because the business you’re in entitles you to no degree of giving your credibility any weight. And secondly, explain to me how she could be damaged. I mean, she has no reputation. If you’re going to sell your body for money, you just don’t have a reputation.”

As a woman and a feminist, I am appalled by these statements. As a lawyer, I am flabbergasted. On top of being misogynistic and anachronistic, Mr. Giuliani’s statements have no basis in fact. Let’s take a look at why his statements are at conflict with the actual law:

Her Business Entitles Her to No Credibility

While Giuliani’s assertion about the credibility of a porn star might hold weight in the court of public opinion, it has no relevance in a court of law. In order to impeach a witness’s credibility at trial, the opposing attorney must produce evidence that the witness is a known liar, has a criminal record, or has committed acts of bad character. Even if you find the adult entertainment industry distasteful, there is no question that Ms. Daniel’s business is entirely legal and she has never hidden her association with it. Furthermore, if involvement in the adult film industry renders Ms. Daniels automatically un-credible, what does that say about those who knowingly and happily associated with her, such as Mr. Giuliani’s main client? If involvement with adult films takes away someone’s credibility, that would mean that President Trump, who has appeared in several soft-core Playboy videos, is equally non-credible. However, you don’t hear Rudy Giuliani making that argument.

Porn Stars Cannot Suffer Damages

Let’s first be clear about how sexist this statement is. Giuliani’s assertion that, as a porn star, Ms. Daniels cannot suffer damage to her reputation stems from the antiquated notion that a woman’s most valuable asset is her virtue. According to men like Giuliani, no amount of a woman’s intelligence,

achievement, or wealth is as important as her sexual integrity. Skipping over the blatant chauvinism, there is no legal merit here. Stormy Daniels is suing President Trump for defamation, specifically for making false and defamatory statements about her. A statement can be considered defamatory if:

  1. It suggests that the victim was involved in a serious crime;
  2. It exposes the victim to ridicule;
  3. It reflects negatively on the victim’s character, morality or integrity;
  4. It impairs the victim’s financial well-being; or
  5. It suggests that the victim suffers from a physical or mental defect that would cause others to refrain from associating with him/her

Giuliani obviously believes that Ms. Daniels’ profession makes her a person of low character/morality, so it is not possible to suggest that her character is lower than it already seems. However, there are clearly other ways to demonstrate that a defamatory story has damaged a plaintiff. If Ms. Daniels and her attorney can prove that the President’s Twitter statements damaged her financially or reputationally, then the President will be liable- and no amount of Mr. Giuliani’s sanctimonious bloviating will make a difference.

Denigrating a porn star might not seem like a big deal, but this episode is important because it is the latest example of Rudy Giuliani deliberately misstating the law for political ends. Having held some of our nation’s top law enforcement positions (as US Attorney and Associate Attorney General), we should all find it unconscionable that Giuliani is deliberately misleading the American public about the nature of the law. While fabrications and falsehoods are endemic to this White House, I always expected better from someone who dedicated himself to upholding and enforcing the rule of law. I think I’ll keep being disappointed.