Back in June I wrote about a lawsuit three women filed against Bill Cosby asserting that he and his agents had defamed them by announcing that their allegations of sexual assault were lies. One of the most interesting issues Cosby raised was whether he was entitled to protection under the "self-defense" doctrine — the idea that simply denying an accusation against you can't be defamatory. After an unusually lengthy delay, a federal judge in Massachusetts has denied Cosby's motions to dismiss, letting the defamation claims move towards trial.
The judge's order is lengthy, but well-written and an excellent example of a judge thoughtfully addressing a complex multi-factor issue. The order touches on numerous defamation-related doctrines and makes some points worth noting if you're interested in free speech litigation.
Choice of Law
The defamation suit against Cosby is premised on diversity jurisdiction. That is, it does not assert federal claims, but is between residents of different states and has an amount in controversy of at least $75,000. Federal law applies to federal claims, state law (generally) applies to state claims. But which state law? Usually it's the state in which the federal court sits. But this case raises one of the exceptions. Here the court applied a rule that in a defamation case, a federal court will apply the law of the state where the plaintiff lived, if the defamatory statement was published there. That adds strategic complexity to defamation suits filed in federal court under diversity jurisdiction. Different states have different laws applying to defamation (for instance, different statutes of limitations), and a plaintiff's attempt to choose a forum might be thwarted under this doctrine.
Single Publication Rule
One of the plaintiffs in this case sued Cosby based on statements his lawyers made in 2005 that the Washington Post reported in 2014. The 2005 statements would be outside the relevant statute of limitations; the 2014 article would be within it. Cosby sought to apply the "single publication rule" — the doctrine that a single publication of a statement yields only one defamation claim. Put another way, a defamatory book that sells 10,000 copies represents one defamation claim, not 10,000. Cosby argued that under this rule the 2014 statement should be treated as merely another iteration of the 2005 statement, and thus outside the statute of limitations. The court disagreed, finding that the plaintiff had stated facts sufficiently to assert that Cosby's agent caused the statement to be repeated in 2014, and that such a repetition was actionable. This demonstrates the limits of the single publication rule; it may not protect republications caused by a defendant.
Analysis of Fact vs. Opinion
Next the court analyzed whether the plaintiffs had pled facts showing potentially defamatory statements — that is, whether they had cited provably false statements of fact rather than opinion.
First, applying the law of California — where the plaintiff in question lived at the the court found that the statement "this is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing" is potentially defamatory because it suggests (incorrectly) that the plaintiff's allegation had been disproved in some legal proceeding. In doing so the court rejected Cosby's attempted application of the so-called "predictable opinion" doctrine, under which California courts have found that certain statements should be taken as opinion because they are made in the context of responding to litigation-related allegations. The idea is that everyone expects, and reasonably understands, that people embroiled in litigation will utter opinions that they are right and the other side is wrong. The court declined to apply that doctrine outside the context of pending litigation. In doing so, the court noted that the statement was not couched in figurative language or hyperbole, which could have undercut the impression that it was meant to be factual.
Next, the court applied Florida law to analyze the statements about the Florida plaintiffs. The court found that the phrases “fabricated or unsubstantiated stories,” “ridiculous claims,” "unsubstantiated, fantastical stories" and "an absurd fabrication" could, in context, be potentially provable statements of fact.
The issue here is really the power of context. Cosby argued that a mouthpiece's statements in response to a public accusation are understood to be opinion, and the court disagreed. I think that the court's view of "fact" is too expansive and its view of "opinion" is too narrow. In context, I think these statements are clearly an advocate's opinion about contested claims, and would be normally understood as such. The exception may be the "proved to be nothing" comment, which could, I suppose, falsely suggest that the claims were legally tested and failed. But other than that aside, this isn't a case where the denial included some gratuitous and potentially false statement about the accuser. Rather, the statements amounted to "everything that person said is bullshit."
Self-Defense Privilege
The court also rejected Cosby's invocation of the so-called "self-defense privilege," which is an embodiment of the context argument discussed above. The privilege, where it's recognized, allows someone accused of wrongdoing to say that the accuser is a liar. The court, noting that California and Florida law applied, found that neither state recognized the privilege. Moreover, the court noted that where it's applied the privilege is conditional — that is to say, it only makes statements immune to defamation when they are uttered in good faith. As a practical matter that makes the privilege almost useless in litigation — a plaintiff need only assert that a defendant's utterance was in bad faith — knowingly wrong — to make the privilege irrelevant.
The bottom line: lawyers, be wary of your public statements denying accusations against your client.
Last 5 posts by Ken White
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Wow. Hard to believe that a defendant's lawyer essentially saying, "They're wrong, we're right," is anything BUT litigious puffing. With respect to saying someone's story is discredited, I don't agree that the public would naturally think of that referring to a statement having not withstood some legal proceeding. In fact, wouldn't that be fairly rare? You would think that more statements would be discredited by investigative journalism, by police, by school authorities. For example it's not like that the lawsuits involving that Rolling Stone story have been resolved in litigation, but I think the story has been pretty well discredited.
I disagree with Cosby's assertion (and thus agree with the court) that an individual defendant should be any less liable for the statements of a "mouthpiece" that they retained the services of. One must take responsibility for what is done by one's agents. And at this point in history, every powerful person and entity has access to spokespersons of one stripe or another. Of course they use them. In order to level the playing field between the powerful and the powerless, it's absolutely necessary to treat spokespersons and their utterances like the actions of any other agent.
So. If a corporation uses a spokesperson to call a whistleblower a liar, I think that (if the corporation knew or should have known that the whistleblower was telling the truth) that they should be liable for defamation in addition to whatever liability the bad acts they had previously committed would create.
Cosby, if he knew he has sexually assaulted women (which I think at this point most reasonable people would agree there is overwhelming evidence for), should be held fully liable if he directed his agents to publicly humiliate them any further.
So then going forward I imagine that lawyers will need to couch things in terms of statements of law, not potential statements of fact.
E.g., instead of, "We believe that the accusations against my client are baseless, trumped-up bullshit, and that the accuser is a lying liar who lies," they will need to say something like, "We intend to prove that the accusations against my client are baseless, trumped-up bullshit, and that the accuser is a lying liar who lies."
Is that about the size of it? Because to me that first statement falls under the concept of a potentially false statement of fact, while the second is a statement of legal intentions. I'm sure there are judges who would read the decision and take umbrage with either one, but you'd still be safer with the second sentence than the first if I'm reading things correctly.
This decision seems totally wrongheaded. If Hillary says accusations re EmailGate are baloney and they turn out to have substance, can Rush Limbaugh sue Hillary because through her denials she implied he is a liar?
This seems ridiculous. The first response of 98% of mankind, when they are accused of something, is to deny. If it turns out that someone is guilty after they said they were not, can all of the accusers sue for defamation if they were right?
Since almost all successful accusations are initially met with denial, it would seem that almost every criminal would additionally be guilty of defamation against everyone who initially accused him, by his initial denials.
This is further complicated by the fact that most defendants no doubt often believe in their innocence, as do their lawyers. It is likely that Cosby really believes or believed he was innocent, even if the facts suggest otherwise. In the movie Shawshank Redemption, Morgan Freeman as Red famously joked 'I'm the only guilty man in Shawshank' — meaning of course that almost every criminal thinks they are innocent.
@Josh M
If I'm reading Ken correctly, both are fine. Both are clearly opinions ("we believe", "we intend to prove"). The issue with the comments here was that they were being stated as fact: ("PROVED to be baseless 10 years ago").
Think this is a good decision overall.
I thought that the law of the plaintiffs' domicile applies by default, but that can change based on other factors (didn't this come up in the discussion of a federal SLAPP law?)?
Can you lawsplain choice of law in defamation (the “dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon.” William L. Prosser, Interstate Publications, 51 Mich. L. Rev. 959, 971 (1953))?
In the third paragraph, it seems like "Federal law applies to state claims" should read "Federal law applies to federal claims." But I'm not a lawyer.
So am I understanding correctly that, under the legal theory behind this decision, "He raped me" is a protected statement but the response "No I didn't rape her" is defamatory?
Agreed that the decision seems somewhat prejudicial towards the plaintiffs, but has Clinton ever directly accused Limbaugh of lying, as Cosby's agent accused the plaintiffs? Moreover, the judge specifically addressed the "level of fault" required in a defamation suit when the plaintiff is a public vs. private individual (pg 29). He determined that the plaintiffs are private individuals and that thus the standard for defamation is "negligence" and not "active malice." Clinton and Limbaugh are both obviously public individuals and would require the higher standard.
And note that the judge is merely ruling on a request for dismissal, not on the suit itself. Many of the standards applied by the judge were applied specifically in the context of the motion to dismiss; the judge reserved final judgement on them to a putative future jury. It still seems likely, to me, that the suit will ultimately fail.
Perhaps Cosby would have been better off merely suing the accusers themselves for defamation rather than talking back. If this ruling becomes precedent it will certainly encourage the next guy in Cosby's shoes to do that. Which is probably not what the court intended.
Oh, and:
I suspect an oops in there somewhere.
@ hymie! says"So am I understanding correctly that, under the legal theory behind this decision, "He raped me" is a protected statement but the response "No I didn't rape her" is defamatory?"
No, I don't read anything in the decision saying that he couldn't countersue for defamation. But it seems unlikely to me he would stand to gain anything but more embarrassment if he did.
IANAL, but I think that that would depend on the facts of the case.
I think for libel/defamation/slander that it's not "prove beyond a reasonable doubt" but on a "more likely than not" basis.
So, if a judge determines that it is more likely than not that the rape occurred, then any denial that implies the alleged victim is a liar could be seen as defamatory.
However, if a judge determines that it is more likely than not that the rape did not occur, then the accusation itself could be seen as defamatory.
From what I understand, though, a lawsuit (and the testimony therein) cannot, in itself, be considered defamatory. So, unless the accusation is also made publicly (like, say, to the media, as it was in this case), getting up on the stand and making either of your example statements would not be defamation (it may be perjury, but I think that has to be proven beyond a reasonable doubt, unlike defamation).
So, who's this good for?
It's great for accusers, because public defenses delivered in mealy-mouthed lawyer lingo will impress absolutely nobody.
It's great for lawyers, because people need to hire even more of them to couch every statement in terms that aren't actionable. It also keeps lucrative cases going rather than being dismissed quickly. And only the client can suffer consequences when they get it wrong.
It's terrible for people being accused, especially when Trial By Media is the only real goal of the accuser.
Wealthy retired celebrities in this country should really move abroad, ideally to some place where the only way to get mired in ridiculous and ruinous legal cases is by opposing the local autocrat.
@Matt W., good points.
Cosby's rep. went way past simple denials. On the other hand, what does anyone do when they are accused? In fact, doesn't the playbook say that you should argue back hard when accused?
Perhaps some prejudice in favor of the plaintiffs is justified since Cosby had a powerful platform to defame his accusers. He somehow silenced dozens of women, which is remarkable. I cannot silence my wife for any length of time.
What a mess.
On the one hand, I absolutely believe that Cosby asserting his innocence should be protected speech and not defamation.
On the other, the word "discredited" always stuck out as a very poor and questionable choice to me, and I can understand how it opens the door to a defamation claim.
I'm inclined to side with Cosby (as fucking painful as that is), but of course the trial hasn't happened yet. Nobody has determined that his lawyer's statements were defamatory, just that they might be, and that seems reasonable to me (at least on the statements implying there had been some evidence released to refute the accusers' claims).
Ken, you might be thinking too much like a lawyer; as a layman, I would not take "proved to be nothing" as an assertion about legal proceedings unless it clearly referred to _past_ legal proceedings. It just says that nothing came of these accusations at the time – which is true.
The Florida plaintiffs seem to be on solider ground; “fabricated or unsubstantiated stories,” “ridiculous claims,” "unsubstantiated, fantastical stories" and "an absurd fabrication" all mean "lies", and they appear to be phrased as statements of fact. The problem here is that allowing this lawsuit to go forward allows the plaintiff to try the case in the press but punishes the defendant for responding in the same forum.
I remember when I was a kid, I asked my dad, who's a lawyer:
When someone testifies in their own defense "I didn't do it," and then they are subsequently convicted anyway, why don't they get charged with perjury? I mean, they were just found guilty beyond a reasonable doubt, right? Therefore they must have lied on the stand when they denied it, right?
I never got a satisfactory reply (although I might have received a rational one, just not satisfactory to my juvenile mind, I don't recall). Does anyone know if this has even happened? It doesn't seem like the 5th amendment would preclude it, but maybe the "litigation privilege" does…?
potentially interesting consequences from this reasoning… Does a defendant, when his attorney files an answer to a complaint that is available to the public as an open court record, potentially commit defamation if he denies the plaintiff's allegations? So, in addition to Rule 11 and whatever state and federal fee shifting laws might apply, there's now civil liability under state tort law for just denying liability? If a plaintiff wins at trial, is that res judicata on the defamation question?
I think there's something missing between the "the"s here; from context I'd suppose it's "where the plaintiff in question lived at the time the statements were made–the court…"
I guess courts don't like to decide cases on 12(b)(6) motions if they think there's any way the plaintiff could prevail, but this result is still troubling.
I am not American nor a lawyer, however the distinction that i am seeing here is that the statements from Cosby and his mouthpiece did not stop at saying that the claim is untrue, they continued on to calling the plaintiffs liars/fabricators.
It is a fine distinction but i think an important one. There is a difference between saying something is untrue versus calling somebody a liar because what they said is untrue. One attacks the claim, the other the person.
@Jacob H
IANAL but if I remember correctly perjury only applies to statements made in depositions.
Perjury attaches to sworn statements made that are intentionally false, and which are material to the outcome of an official proceeding. This includes but is not limited to any such statements made in deposition testimony.
Good chance I left something out but that's a start anyway…
Because you would have to have a second trial where you prove the original allegations, and also prove that the defendant knew that their testimony was false. It's not generally a productive use of resources.
Uh, what?
Many (if not most) jurisdictions no longer make materiality an element.
@Daniel Hess
Isn't using an automatic denial of guilt to add the charge of providing a false statement standard procedure in the criminal justice system these days? Incorporating this into civil procedure would merely unify the two systems.
@Paradigm – sorry, I should have been more clear; I meant the when the defendant testifies on the stand at trial, under oath, and says "I didn't do it"
@Jacob H
A little research suggests that as long as the individual has taken an oath and makes a false statement of fact then it doesn't matter whether you're on the stand or being deposed.
Whether or not anybody who could prove that such an individual was perjuring themselves would bother to make a criminal case out of it is another matter. It generally seems to not happen in cases against criminal defendants.
Not a Lawyer question. Would this analysis change if Cosby's lawyers had said "We stand by our statements made five years ago when these allegations first came to light" or "Everything we're going to say about this we said five years ago" and left it at that. On one hand, I could argue that any comments that were expressed were made outside the limits of the statue of limitations. On the other hand, I could argue that by referencing the earlier statements, they are in effect making them again.
@Ken – How do you get from defamatory statements by Cosby's rep to a defamation suit against Cosby? Is it simple agency theory?
@Mike,
It seems to be. From link #2, under "Respondeat Superior Liability" , the judge said:
That almost seems to be saying that Cosby's lawyers did not interrogate him hard enough till he confessed, otherwise they would have known they were making defamatory statements. Or is there some other way to read that?
Yes. From (the first sentence of) the opinion:
And if you say that to a federal government employee and they can prove you lied about it you will go to jail for 5 years.
Some of you might not agree but I think this needs to go to a jury. The guy went on TV and basically said we proved they are all a bunch of liars 10 years ago. It hits all the buttons of a defamation claim. And I agree with a couple of the other posters. The rich and famous that hire these public relations hit people should be held responsible for what they say.
Having the resources to hire one of these pit bulls puts an ordinary person at a severe disadvantage, and that disadvantage becomes blatantly unfair if the hired people can then defame the other party without repercussion to the client. You create a situation where the rich and famous can set these public relations people up with no assets so any defamation claim would be pointless. And then they can go on TV and smear you up and down the dial without any reasonable hope of a fair claim against the instigator behind it all who is the person that hired them. Just like a business they should be responsible for what their employees do regardless of the level of supervision.
I'd be surprised if they can beat Cosby in a trial but they should certainly get their chance in front a jury. And if what he said proves to be defamation Cosby should be on the hook for the damages.
So if Michael Mann lived in California, his defamation suit against Mark Steyn would have traction, since he could argue that Steyn calling him a fraud was actionable because it suggests that Mann's scientific findings had been found fraudulent in some legal proceeding?
@naturalized: I don't think that prefacing any statement with "we believe" changes anything. We presume that people who make assertions believe those assertions. That neither weakens them nor strengthens them.
Prefacing with "we intend to prove" makes a statement stronger, not weaker. Clearly if you intend to prove something, you presently believe it is true. I don't think a person can intend to do something he does not believe can be done. So this asserts not just that the speaker believes the thing said but that he further believes that he can demonstrate it with evidence.
Consider:
1) John Smith raped a penguin.
2) I believe John Smith raped a penguin.
3) I intend to prove John Smith raped a penguin.
I see no significant difference between 1 and 2. And I see 3 as stronger, since it suggests the speaker has evidence that can show the thing believed.
Man, now I gotta watch My Cousin Vinny again when I get home. …I suppose there are worse things Popehat could encourage one to do.
Also, while the opinion sounds correct, legislation should probably be passed to make it incorrect. Quite simply: if it's illegal to say that your accuser is lying, then silence becomes akin to an admission of guilt. Now really, silence is a great way to not dig your hole deeper, but people SEE it as an admission of guilt, just as they see pleading the fifth as one. And, as an unfortunate number of people have learned: being accused of a crime, and found not-guilty, is still more than enough to ruin your life. You stay out of prison, but that's not always sufficient.
Sometimes it's better to just say nothing or to keep comments low key. Cosby's atty's went too far playing to the media. They painted these ladies in a bad light with seemingly factual statements: "proved to be nothing", "fabricated", "unsubstantiated". They should have just kept their mouths shut! Maybe they subconsciously doth protest too much to get this reaction because they detest him also.
In other news: http://www.hollywoodreporter.com/thr-esq/bill-cosby-loses-prominent-lawyer-833438