As the sexual assault trial of Harvey Weinstein gets underway, people are reminded of the impact of the #MeToo movement on our justice system. We are also reminded of another truth that many victims of sexual assault know all too well, waiting to speak out can mean that the guilty party is immune from criminal prosecution because of the short statute of limitations periods on sexual assault in many states. Victims, unable to pursue justice directly, have begun in increasing numbers turning to the centuries-old tool of defamation lawsuits, opening an alternative legal battleground for dealing with accusations of sexual misconduct.
No one exemplifies this growing trend more than the actress, Ashley Judd. In 2017, Ms. Judd raised allegations about a sexual assault she claims to have suffered at the hands of Weinstein some twenty years earlier. However, like many of the claims of sexual misconduct leveled against Weinstein in the months that followed, Ms. Judd’s claims were too old to prosecute. Undeterred, Ms. Judd sued the producer for defamation in 2018 after reading that Mr. Weinstein’s studio, Miramax, had described Ms. Judd as a “nightmare to work with.”
Ms. Judd’s slander suit is hardly the only high profile defamation suit to come out of the #MeToo era. This year alone several highly publicized defamation cases involving President Trump, the Senate candidate Roy Moore and the actor Johnny Depp are expected to go to trial.
In one such case, Summer Zervos, a former contestant of the president’s popular reality TV show “The Apprentice,” filed a defamation lawsuit against President Trump for his comments on the campaign trail that her accusations of unwanted kissing and groping were fabricated. The president has sought to avoid the suit by arguing that he cannot be sued in state court while in office. E. Jean Carroll filed a similar lawsuit against President Trump after he accused her of lying about his raping her to increase sales of her new book.
While the facts of each libel suit differ, many #MeToo plaintiffs are basing their suits on statements by the men they accused calling them liars. For many plaintiffs, suing for defamation provides them the opportunity to air the facts of what happened years ago, even if they are unable to hold the accused criminally liable. On the other hand, men like Mr. Depp are using defamation suits defensively to preserve their reputations against allegations from women, in his case, his ex-wife Amber Heard, who accused him of domestic abuse. In another case, writer Stephen Elliott sued Moira Donegan, the creator of a widely circulated list of men accused of sexual misconduct that included his name.
Courts have only begun to grapple with how to handle these #MeToo-inspired defamation lawsuits. These cases raise myriad legal and social issues, including what the limits on freedom of speech are or should be; whether the statutes of limitations on sexual misconduct crimes should be extended; and the potential for abuse or misuse of the court system. Another concern is the potential for defamation plaintiffs being countersued by the men they have accused. Advocates of the #MeToo movement fear that this could force victims to remain silent.
Advocates on both sides are anxious. Lawyers for people accused of misconduct fear that a string of defamation victories for women will prevent men who believe they have been wrongly accused of freely defending themselves. At the same time, backers of the #MeToo movement fear that a spate of defamation cases against women will push victims back into the shadows.
One example of this the ongoing legal saga of nationally renowned Constitutional law scholar and member of President Trump’s impeachment legal team, Alan Dershowitz. Virginia Giuffre sued Mr. Dershowitz for slander after he denied her claims that he was involved in Jeffrey Epstein’s sex trafficking operation. Mr. Dershowitz responded to the suit by countersuing Ms. Giuffre for defamation.
Two hurdles stand in the way of many of these plaintiffs. Because many of these plaintiffs have publicized their accusations against the men they claim assaulted them, they may be considered public figures, meaning the plaintiffs are required to prove “actual malice” (i.e. that the defendant knew the statement was false or made the statement with “reckless disregard” for whether it was true). The second hurdle involves the dichotomy between statements of fact and opinion. Generally speaking, statements of pure opinion are non-actionable whereas statements of fact are.
Whether you are being accused of harming someone’s reputation or you believe someone else has harmed your reputation by making defamatory statements, it is important to consult an experienced slander law and cyber-smear law attorney. Our DuPage County defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. You can view here a federal court decision where we prevailed in a libel per se claim asserting the innocent construction defense. Here is an arbitration decision where we successfully defended our client by presenting evidence that our client’s 20+ YouTube videos containing negative opinions about a used car dealer were substantially true and were protected opinion under the First Amendment. We recently required a defendant who publicized an allegedly false lawsuit regarding our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16 million suit for libel per se in federal district court.
Our Chicago and Wheaton defamation attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Wilmette and Evanston who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating websites in order to publish defamatory content about our business clients. Beyond slander and libel law, our Chicago business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. We serve clients throughout Illinois and the Chicagoland area. You can contact us online here or call us on our locally number at 630-333-0333.