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Notes -
Defamation Bear Trap
The legal field is filled with ad-hoc quirky legal doctrines. These are often spawned from a vexed judge somewhere thinking "that ain't right" and just making up a rule to avoid an outcome they find distasteful. This is how an exploding bottle of Coca-Cola transformed the field of product liability, or how courts made cops read from a cue card after they got tired of determining whether a confession was coerced, or even how an astronomy metaphor established a constitutional right to condoms. None of these doctrines are necessarily mandated by any black letter law; they're hand-wavy ideas that exist because they sort of made sense to someone in power.
I've dabbled in my fair share of hand-wavy ideas, for example when I argued that defendants have slash should have a constitutional right to lie (if you squint and read between the lines enough). Defamation law is not my legal wheelhouse but when I first heard about Bill Cosby being sued by his accusers solely for denying the rape allegations against him, I definitely had one of those "that ain't right" moments. My naive assumption was that a quirky legal doctrine already existed (weaved from stray fibers of the 5th and...whatever other amendment you have lying around) which allowed people to deny heinous accusations.
I was wrong and slightly right. Given how contentious the adversarial legal system can get, there is indeed the medieval-era legal doctrine of "Litigation Privilege" which creates a safe space bubble where lawyers and parties can talk shit about each other without worrying about a defamation lawsuit. The justification here is that while defamation is bad, discouraging a litigant's zeal in fighting their case is even worse. Like any other cool doctrine that grants common people absolute immunity from something, this one has limits requiring any potentially defamatory remarks to have an intimate nexus with imminent or ongoing litigation.
It's was an obvious argument for Trump to make when Jean Carroll sued him for defamation for calling her a liar after she called him a rapist (following?). A federal judge rejected Trump's arguments on the grounds that his statements were too far removed from the hallowed marble halls of a courthouse. Generally if you want this doctrine's protection, your safest bet is to keep your shit-talking in open court or at least on papers you file in court. While the ruling against Trump is legally sound according to precedent, this is another instance where I disagree based on policy grounds.
Though I'm a free speech maximalist, I nevertheless support the overall concept of defamation law. Avoiding legal liability in this realm is generally not that hard; just don't make shit up about someone or (even safer) don't talk about them period. But what happens when someone shines the spotlight on you by accusing you of odious behavior from decades prior?
Assuming the allegations are true but you deny them anyways, presumably the accuser would have suffered from the odious act much more than for being called a liar. If so, seeking redress for the original harmful act is the logical avenue for any remedies. The (false) denial is a sideshow, and denial is generally what everyone would expect anyways.
But assuming the allegations are false, what then? The natural inclination is also to deny, except you're in a legal bind. Any denial necessarily implies that the accuser is lying. So either you stay silent and suffer the consequences, or you try to defend yourself and risk getting dragged into court for impugning your accuser's reputation.
My inclination is that if you're accused of anything, you should be able to levy a full-throated denial without having to worry about a defamation lawsuit coming down the pipes. You didn't start this fight, your accuser did, and it's patently unfair to now also have to worry about collateral liability while simultaneously trying to defend your honor. Without an expansion of the "Litigation Privilege" or something like it to cover these circumstances, we create the incentive to conjure up a defamation action out of thin air. The only ingredients you need are to levy an accusation and wait for your target's inevitable protest. That ain't right.
This is the part I find a lot of problem with whenever this topic comes up, often in the context of sexual assault/rape accusations. I don't think any denial necessarily implies that the accuser is lying. It necessarily implies that the accuser is wrong. Given what we know about the fallibility and malleability of memory, particularly when stressful situations are involved, it's entirely possible for the accuser to be honest to the best of their ability and still be completely, entirely wrong about the facts of what occurred. I don't know if this affects the legal calculus of the potential defamation suit; is the claim that an accuser is making an incorrect accusation for whatever reason - without implying that the accuser is lying - defamation? I don't know, but that's the actual pertinent issue than the claim that they're actually lying.
I believe that Christine Blasey Ford was not lying about Judge Kavanagh sexually assaulting her. I believe she has extremely vague memories of being grabbed and groped by a drunk guy 40+ years ago and believes Kavanagh did it.
My best estimation is that she is factually wrong, but indeed not a liar.
I’m not even sure the incident happened as Ford imagined. I can imagine some guy joshing around and Ford believing X happened (ie a misinterpretation). Doesn’t make her a liar. But a woman her age should have the perspective that maybe my memory isn’t perfect and maybe the situation was a bit different than even I thought.
Yeah. The year and location of the incident is quite slippery in her memory. She barely recalls any details and they change from one memory recall to the next.
A drunk guy grabbed her once. I believe that happened in some manner at some point in her life. I don't trust her for any other detail or fact from recalling 40+ year old memories.
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Having reread the story as she told it, I think there’s some evidence that she was changing the story to fit things he provided.
The number of people in the room changes. There were four, then five (one female). She couldn’t name them.
The location of the house moves once it’s made clear that the party he went to was miles away from the location she describes.
The geometry of the house changes (the stairs go from short to narrow, the living room and family room were initially separated allowing her to escape; until it became one bigger room).
The timing changes. She was older in the original story, which changed once she realized he would be at Yale at the time.
I think there was a real rape, and she was raped by someone. But it always seemed odd that she’s constantly trying to fit her memory to the details he provided. And to my knowledge she never really stuck to her guns and said he’s wrong, this is what happened. So my best guess is that she’s describing a different party at a different time, one that she knows Kavanagh had nothing to do with, but she’s trying to put him and herself in the same room in the same house even though none of the details actually fit.
To go one step further: she wasn't raped by anyone in any circumstance. She was grabbed and groped. Which is scary and bad, but not rape.
She was never raped and the man who didn't rape her was probably not Kavanagh.
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It seems like an inconsequential distinction to me, not worth hanging defamation liability upon. It's true that an accusation could be false either intentionally or by mistake. If someone makes an intentionally false accusation (read: lying) and you know that, then wouldn't it be misleading (or perhaps even lying) to accuse your accuser of a mistake instead of a lie?
Even if the point you make is adopted as regular practice (where the accused avoid claiming anyone is lying, just that they're mistaken) would it make any practical difference? If the accuser denies that they made a mistake but you insist otherwise, is that materially different from accusing them of lying?
When denying an accusation, I don't think you need to specify whether the accuser is lying or merely mistaken. Just that they're wrong. If you go into specifics, e.g. explicitly accuse the accuser of lying, I think it'd be correct to leave you open to liability. But that level of specificity isn't necessary for denying an accusation.
I disagree, the specifics are important here. I deal with this constantly with clients who deny the allegations but then have no follow-up explanation. In a hit & run case, the defendant denies he was driving the car. Ok then who was driving your family's car then? In a stabbing case, the defendant denies the witness correctly IDed him. Ok then who else had access to this building? In another case, the defendant claims the witness is lying. Ok how do you know? why are they lying? what's their motive? when did they coordinate their stories? etc and so on.
It's frustrating to me when clients air out vague general denials because then there's nothing else for me to do as a defense attorney but also on a personal level it makes me suspect the truth of everything they tell me. Generally speaking, as a rough heuristic, the truly innocent clients of mine tend to express the same amount of curiosity about their case that I do. If they were really IDed incorrectly, they absolutely want to know who this doppelganger is. They barely can stop themselves to give me names of people to talk to, companies to subpoena, surveillance cameras to examine, etc.
I know this list of examples is in no way exhaustive, but only one of those examples had the accused person making a positive claim about someone else being dishonest (the lying witness). The others seem to me, if those questions were answered and explained, to be just fine ways to deny the accusation without impugning the accuser's honesty or otherwise defaming them. For the claim that a witness lying, I'm thinking the defendant shouldn't claim the witness is lying unless they have some specific evidence or motive, and if they lack such a thing, they should retreat to the "witness is wrong" claim rather than "witness is lying."
IANAL, so I can't speak with authority on any of this, and I can't speak to the ins and outs of how a defense strategy gets formed and implemented. It just seems to me that, unless there's specific reason to think so, there's no need to claim that an accuser is lying, but rather just wrong. If they claim that the accuser is lying but lack the evidence to substantiate it, then they shouldn't have made such a claim as part of their defense in the first place, so not being able to do so for fear of a later defamation lawsuit down the line doesn't seem like a loss. If they do have such evidence, then that would strengthen their defense and also protect them, however imperfectly, against defamation lawsuits.
My point was broader than just the scenario of calling the accuser a liar, I was highlighting examples to illustrate how unconvincing vague general denials are. If someone levies an allegation that you deny, the natural reaction from bystanders is to wonder why an accuser would lie or otherwise be wrong about something so serious. A denial is much more credible if you can offer some sort of explanation to that burning question.
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You make a good point—I wonder if keeping it to the Shaggy Defense would have avoided any defamation. As it is, he fit it into his “witch hunt” narrative, and really put her on blast.
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