Can a denial open you up for a defamation suit? Apparently.
This is essentially what recently happened to Bill Cosby. Three women said that Mr. Cosby sexually abused them many years ago, before many of you were born. The incidents fell well outside the statutes of limitations, so the women couldn’t sue for the alleged abuse.
Mr. Cosby’s attorneys and publicists made some scathing public denials to these allegations in 2014. (Not including the “$100 bill” part, which was James Carville talking about Paula Jones, or that “and” and “the” stuff.)
The women, through their attorneys, replied, “He’s calling us liars, and that’s a bald-faced lie!” (My paraphrase.)
Then, in a brilliant end-run around the statute of limitations, they sued Mr. Cosby for defamation, based on the denials made by his lawyers and publicists.
Could Mr. Cosby have filed a counterclaim against them for “falsely” accusing him of sexual misconduct? You betcha, but there’s one problem. Truth is a defense to a defamation claim, and Mr. Cosby probably isn’t too eager to have that particular defense asserted against him. So the women knew they were safe in taking the offensive. And if he was foolish enough to countersue, . . . well, then, they could surely have some fun with that, too.
Mr. Cosby’s only recourse was to try to get the defamation lawsuit thrown out of court, but a federal judge in Massachusetts ruled that the case could go forward. This means that attorneys will be able to probe into Mr. Cosby’s alleged sexual misconduct to “prove” that he defamed his accusers when his spokespeople said that their allegations were false.
Put another way, by some shrewd maneuvering, the women have won their day in court to prove that Mr. Cosby sexually abused them before many of you were born.
Like Ken White at Popehat, I have mixed feelings about the court’s decision although I agree with him that it is very thorough and well-reasoned. It seems almost un-American to me to refuse someone the right to deny an accusation. Not that I condone lying and certainly not perjury, but if someone calls you a crook, it seems to me that you should be able to deny it in the public square without having to worry about being sued for defamation. Public denials aren’t defamatory, in my opinion. No one takes them too seriously.
Mr. Cosby argued the same thing to the court, but he got nowhere. The court’s decision has some valuable lessons for attorneys, public relations people, and other “mouthpieces” who are making public denials on behalf of their clients. According to the court,
*Mr. Cosby may be liable for what his lawyers and publicists said, even though Mr. Cosby didn’t say a word, because the lawyers and publicists were his agents, and presumably he helped formulate what they would say, was aware of what they would say, and approved it.
*There is a limited privilege to speak freely in connection with pending litigation (and generally anything filed with a court is absolutely privileged), but the women’s statements and the Cosby agents’ responses were made before any lawsuit had been filed. Therefore that privilege did not apply.
*Saying your adversary is full of baloney may not necessarily be a non-defamatory expression of opinion. Taken in context, it could be viewed as a “factual” statement and therefore give rise to a defamation claim.
I’ve never been a fan of the “No comment” approach when a client is sued (as a lawyer for defendants, I believe defendants ought to say some things in their own defense). But in light of the Cosby decision, attorneys, PR folks, and other spokespersons should make sure they don’t go overboard in defending their clients outside of the courthouse. It should still be all right to say something like, “We disagree with Ms. So-and-So’s contentions, which my client takes very seriously. We look forward to allowing all of the facts to come to light.”
Then make sure that the full (honest) story is in your court filings, where it’s protected from defamation claims but still a matter of public record.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.