Bill Cosby's recently been accused of lifelong serial rape and sexual abuse, sometimes involving drugging women. He's responded — as celebrities tend to — with broad denials and suggestions that his accusers are lying. That public relations move has provoked a defamation case filed in federal court in Massachusetts posing a significant question: when you vigorously deny an accusation, do you defame the accuser as a liar?
In their amended complaint, plaintiffs Tamara Green, Therese Serignese, and Linda Traitz accuse Cosby of drugging and sexually assaulting them in the 1970s. But those assaults are outside the statute of limitations and are not the basis of their claims. Instead, they assert that Cosby defamed them in the course of responding to their public accusations, mostly in 2014. In Green's case, Cosby's spokesperson said that the allegations were "absolutely false" and "did not happen in any way, shape, or form," and on another occasion said that the sexual assault never occurred. With respect to Serignese, Cosby's spokesperson said that the public accusations against Cosby (which, at the time, included Serignese's) were untrue and that claimed sexual assaults did not occur. In Traitz' case, Cosby's spokesperson said that her claims were "the latest example of people coming out of the woodwork with unsubstantiated or fabricated stories."
Cosby filed a motion to dismiss, which the court heard this week. That motion turns on several familiar First Amendment concepts.
But notice first what Cosby didn't file: an anti-SLAPP motion. Massachusetts has a feeble anti-SLAPP statute that only protects petitioning activities, not speech in general. So Cosby didn't have to confront the complications of asserting state anti-SLAPP statutes in federal court.
The virtue of an anti-SLAPP motion is that it allows the defendant to introduce evidence (for example, the exact content of the allegedly defamatory statement) and forces the plaintiff to produce evidence. Without an anti-SLAPP statute, Cosby faced a dilemma — how could he demonstrate that his agent's statements weren't defamatory if the compliant didn't quote them exactly? A motion to dismiss isn't supposed to consider extrinsic evidence; it's only supposed to consider whether the complaint pleads facts that are legally sufficient to support a claim. Fortunately for Cosby, he's able to rely on an exception to this rule: when a complaint relies on and refers to an extrinsic document (say, by claiming breach of a written contract, or an allegedly defamatory publication), courts will often consider that document as part of the motion to dismiss. That prevents plaintiffs from evading motions to dismiss by keeping their complaints vague.
Cosby's main argument is that his denials do not explicitly call the plaintiffs liars, and that even if they did, such statements are generally protected opinion, not potentially defamatory fact. Cosby's on fairly solid ground here. Accusations of dishonesty are often treated as opinion. See, e.g., Morningstar, Inc. v. Superior Court, 23 Cal.App.4th 676, 691 (1994) (titling article “Lies, Damn Lies, and Fund Advertisements” not actionable as libel because it “cannot reasonably be read to imply a provably false factual assertion”). Moreover, courts are more likely to interpret statements as opinion when they are uttered in the context of a legal dispute, since everyone expects the participants in such a dispute to bluster. See, e.g., Information Control v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980) (in context of legal dispute, “language which generally might be considered as statements of fact may well assume the character of statements of opinion.”)
That's the heart of Cosby's motion. He also points out that one of the challenged statements is outside the statute of limitations, that some of them refer to accusers generally and not any of the plaintiffs specifically, and that calling Traitz a liar is provably true because she has fraud convictions. But the argument that's gotten the most attention is Cosby's reference to the fairly obscure "privilege of self-defense" recognized in some jurisdictions. If a statement is "privileged" under the law, it can't be the basis for a defamation claim. Here's how one court cited by Cosby described that privilege:
[T]he common law on the conditional (or qualified) privilege of reply, also known as the privilege to speak in self-defense or to defend one's reputation, can help guide our discussion. Under the common law, the publication of a defamatory attack constitutes an "occasion" triggering the conditional privilege of reply, but the protection of that privilege is lost if it is "abused."
But a little further exploration shows that the privilege isn't absolute. It doesn't apply if the rebuttal is gratuitous:
One may abuse, and thus lose, his conditional privilege of reply if, inter alia, (1) his reply includes substantial defamatory matter that is "irrelevant" or "non-responsive" to the initial attack; (2) his reply includes substantial defamatory matter that is "disproportionate" to the initial attack; or (3) the publication of his reply is "excessive," i.e., is addressed to too broad an audience.
The Plaintiffs' opposition to the motion is forceful. They argue that the "self-defense" privilege isn't the law in any of the applicable jurisdictions1, and that Cosby's statements can be understood to refer to the plaintiffs. With respect to the core issue — the distinction between fact and opinion — they rely on Milkovich v. Lorain Journal, in which the Supreme Court found that even a statement of opinion can be actionable if a reasonable jury could find that it implies a provably false statement of fact. Here, plaintiffs assert that Cosby's denials, even if taken as public relations puffery, falsely imply that they are lying about him sexually assaulting them.
Cosby replies that Plaintiffs are characterizing his agents' statements rather than quoting them exactly. In context, he argues, reasonable people would understand them to be the public relations position of a spokesperson, and thus classic opinion. Moreover, he redoubles his reliance on the privilege of self-defense, citing another district court for it: "general denials of accusations are not actionable as defamation."
It's a hard-fought motion. The usual suspects are downplaying the First Amendment elements, sneering that Cosby is demanding some sort of patriarchal protected right to attack accusers. That's not a fair reading of the motion. First, the opinion vs. fact dispute is central to a very wide range of free speech cases involving utterances of every kind. Lawsuits attacking opinions are one of the most pervasive challenges to modern free speech. Second, the relatively obscure self-defense privilege recognizes how a never-ending cycle of accusation can chill speech.
I defend a lot of people in both civil and criminal cases. Sometimes the press makes inquiries. My standard line is something like "we look forward to disproving these accusations in court" or "the government has it wrong, and we look forward to defending [client] in court." It's vague and mostly meaningless but the public doesn't read it as a tacit admission, as they tend to with "no comment." Under the Plaintiffs' theory here, I could be committing defamation every time I say that, if the lawsuit or prosecution relies upon the statement of a victim. This is particularly troubling in criminal cases. It means that the only public statements would be those of the prosecution, and defendants and their counsel could only assert their innocence — even blandly and non-specifically — at risk of a lawsuit.
Privileging non-gratuitous denials seems like sound policy.
The court took Cosby's motion under submission, and at the time of this writing hasn't ruled. I'll update when we get a ruling.
- I could write about the choice-of-law issues presented, but neither of us would like that. ▲
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