Exploring the Role of Defamation in the #MeToo Narrative

Exploring the Role of Defamation in the #MeToo Narrative
September 21, 2018 RPJ Law

September 21, 2018

Recently, defamation claims have taken center stage as a legal mechanism for victims of sexual harassment to seek some justice  for situations where they are otherwise prevented from bringing direct legal claims of sexual harassment. Alleged harassers who claim to be falsely accused have also recently used defamation as a tool to combat unsubstantiated accusations by an alleged victim. On Wednesday a California federal court judge held that actress Ashley Judd’s sexual harassment claims against Harvey Weinstein could not be pursued in court because the California law she sued under was not applicable to the professional relationship she had with him. However, the judge also held that other legal claims by Judd could proceed, namely her claim that Weinstein defamed her by smearing her name after she refused his sexual advances and thereby blocked her from being cast in The Lord of the Rings. The court ruled that Judd’s defamation claim could proceed even though the alleged defamation occurred 19 years after the time period for bringing such claims had expired.

Specifically, Judd has alleged that after she rebuffed Weinstein’s sexual advances in a meeting in his hotel room, Weinstein told The Lord of the Rings director Peter Jackson in 1998 that she was a “nightmare” to work with, after she had already reached an advanced stage in the casting process for the film. She alleged that Weinstein’s statement caused her to lose the casting opportunity in the film and its sequels. Under California’s applicable statute, Judd had only a year after the alleged defamation to file a claim. Other states have similar limited time periods before the statute of limitations expires on defamation claims. But if the individual alleging defamation can show that he or she could not have reasonably discovered the defamatory statements until after the deadline, a court may allow the claims to proceed after that statute of limitations has expired. In the case of Ashley Judd, she claims that she did not learn about the statement that Weinstein made to Jackson in 1998 until Jackson recounted them in an interview in December 2017. The District Court of the Central District of California therefore held on Wednesday that it was plausible that Judd would have been unable to learn of the alleged statements before the one-year statute of limitations had run and that her defamation claims would therefore survive Weinstein’s motion to dismiss.

As defamation claims are governed by state law, they vary from state to state. But generally a victim of sexual harassment can establish a claim for defamation against a harasser who denies the allegations by showing that the “denial statements” made to a third party harmed the victim’s reputation and included a provable falsehood. The statements must usually be more than mere opinion, although if an opinion implies a false statement of fact, the opinion may also constitute actionable defamation.

Like Judd’s case, other lawsuits alleging defamation claims have gained attention recently by allowing similar high profile alleged victims of sexual harassment to pursue claims against employers and alleged harassers. For example, former supermodel Janice Dickinson brought claims of defamation with respect to a 2014 press statement made by Bill Cosby’s former attorney, Marty Singer, in which he stated that Dickinson’s claims that Cosby drugged and raped her in the 1980s was a lie. In November 2018, a California appeals court held that Dickinson could move forward with her defamation lawsuit. Similarly, Summer Zervos, a former contestant on The Apprentice, brought defamation claims against President Trump in which she alleged that Trump’s statements denying Zervos’s claims of unwanted sexual touching by Trump were defamatory since her stories of harassment were true. On March 20 of this year, Justice Jennifer G. Schecter of the Supreme Court of New York held that those claims against Trump could proceed even while Trump serves as President of the United States.

Defamation has also been used recently as a tool for an alleged harasser who denies committing sexual harassment to seek some justice against the alleged victim as well. For example, an employee who has wrongfully been accused of sexual harassment by another employee may sue the other employee who made the allegations for defamation or potentially others who repeated the allegations as true. Last year, Ralph Johnson, an employee of the Boeing Company, brought an action alleging that another employee, Barbary Wiley, made false complaints of sexual harassment against him in retaliation for his removing her from a lead position at the company. Johnson brought claims of defamation against Wiley, but in that case the District Court for the Western District of Washington held that Johnson had waited too long after he knew that Wiley had made the alleged defamatory statements to file a claim, since the statute of limitations had already run by the time that he filed an action. Although Johnson tried to claim, as Ashley Judd successfully did this week, that the alleged defamatory statements made by Wiley were hidden from him until later on, he was not successful since he had actual knowledge of the accusations of sexual harassment made before the time period for bringing a claim had expired.

I expect that defamation will continue to play a large role in the #MeToo movement, both in lawsuits brought by victims and as wrongfully accused harassers seek legal recourse to combat unsubstantiated  claims. However, I also suspect that moving forward, some alleged victims of sexual harassment, influenced by recent events, may be more likely to pursue direct sexual harassment claims in a timely fashion before the statute of limitations on such claims expires. This may in the future obviate the need for some victims to rely solely on defamation to pursue  justice for the alleged wrongs.

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. For more information, please contact RPJ Attorney Ethan Krasnoo, who counsels both companies and individuals on employment (including sexual harassment, discrimination, and contractual matters), entertainment and media, First Amendment, and data privacy matters. Mr. Krasnoo is admitted to practice in New York State, the U.S. District Courts for the Southern and Eastern Districts of New York, the U.S. Court of Appeals for the Second Circuit, and U.S. Tax Court. Attorney Advertising.