Defamation and the #metoo movement (Part II)

This fall marks two years since the #metoo hashtag went viral, sparking a broader movement and national conversation on sexual harassment and assault. This summer, we noted that with the rise in sexual harassment and misconduct claims also came a rise in related defamation claims. Individuals accused of various forms of sexual misconduct have sued for defamation, arguing that false accusations have damaged their reputations and caused other serious harm.

In one high-profile example, we wrote about the $50 million defamation suit involving actors Amber Heard and Johnny Depp. Mr. Depp sued his former wife over what he claims were her false allegations of sexual violence and physical abuse. Ms. Heard moved to dismiss the suit, but in July, her motion was denied and the suit allowed to continue.

In September, Ms. Heard filed a motion to amend her response to Mr. Depp’s suit, in part to assert a more detailed defense to the claims against her.

According to the memorandum accompanying the motion, Ms. Heard cannot be held liable for any statements or implications from the now-infamous opinion piece at the center of the lawsuit. The motion suggests that rather than being about Johnny Depp specifically, Ms. Heard’s op-ed was a “call to action.” The motion argues that Ms. Heard “called on Congress to ‘reauthorize and strengthen the Violence Against Women Act,’ and criticized ‘proposed changes to Title IX rules governing the treatment of sexual harassment and assault in schools.’” The motion also alleges that in general, op-eds are not actionable because they are published “‘in a place usually devoted to, or in a manner usually thought of as representing, personal viewpoints.’” (citing Robert D. Sack, Sack on Defamation). Ms. Heard’s statements in particular, according to the motion, are not actionable because they are protected opinions and are not expressly about Mr. Depp’s alleged assault of Ms. Heard.  

The case is set a 12-day trial in a Virginia state court beginning in February 2020.

While suits involving celebrities draw public attention, celebrities are not the only people accused of misconduct or suing their accusers.

Last month, a federal court in New York ruled that a former college student’s lawsuit over what he claims are false allegations of sexual misconduct was plausible and could move forward.

The case, Goldman v. Reddington, involves former Syracuse University students Alex Goldman and Catherine Reddington and the university’s investigation into allegations Goldman sexually assaulted Reddington.

According to the judge’s opinion issued on September 25, 2019 (and discussed in depth here), Reddington filed a Title IX complaint against Goldman in June 2017. She filed the complaint with the school not long after police had determined they had “no credible proof” she had been sexually assaulted. Reddington had reportedly told police she had no recollection of the night she believed she was assaulted, but had other physical signs she had been assaulted that were documented in a SANE exam. In the university investigation process, Reddington told the investigator she had remembered being assaulted by Goldman. The university ultimately found Goldman responsible for conduct violations and expelled him.

In his suit against Reddington, Goldman alleged several of Reddington’s text messages and social posts referring to Goldman as a “rapist” and “monster” were defamatory.

Reddington asked the court to dismiss the claims. She argued Goldman did not adequately allege her statements were false, an argument with which the court disagreed. She also asked the court to find that her statements about Goldman were substantially true, something the court was unwilling to do in its evaluation of her motion.

 At that stage in the litigation, the court must assume the truth of most of the factual allegations rather than resolving different accounts of what happened. The court found “the facts alleged in the complaint and its attachments allow Goldman to satisfy the liberal pleading standard and plausibly allege that Reddington published false statements.” Like Amber Heard’s motion in the defamation case against her, Reddington also argued some of her written statements were simply opinions and weren’t expressly about Goldman. The court was not convinced, however. The bulk of Goldman’s claims survived the motion and the lawsuit can move forward.

Defamation cases are notorious for being more complex than they might initially seem. They often require careful analysis and consideration of evolving legal standards, shifting cultural norms, and competing ideas about what a person’s words meant in a particular context. Depp v. Heard and Goldman v. Reddington are no exception. It’s far too early to predict whether either case will become a blueprint for success or a cautionary tale for future plaintiffs or defendants.

By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2019. All rights reserved.

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