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."
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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