The Reply That “The Accuser Is Lying” Is Not As Safe As You Think

When a client is accused of wrongdoing, the press often contacts attorneys for comments. Some attorneys choose the safe route and respond, “no comment,” which is not ideal for public relations. Other attorneys steer a middle course with measured words to the effect of “the allegations are without merit and we look forward to contesting them in court.” But some attorneys are more aggressive and offer comments affirmatively suggesting that the accuser is lying.

These aggressive attorneys should not automatically assume that their statements are immune from defamation suits.

This month a federal judge in Massachusetts denied entertainer Bill Cosby’s motion to dismiss defamation claims against him. The plaintiffs in that case – three women who claimed to be victims of sexual assault by Cosby – all cited statements by his attorneys and representatives to the effect that they were lying. In denying Cosby’s motion to dismiss, the court applied California and Florida law to find that the attorney statements were not protected opinion, but potentially provably false assertions of fact, and therefore subject to defamation analysis.

One publicist’s statement asserted, “this is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing.” The court found that statement could be interpreted as a false statement of fact because it implied that the accuser’s claims had been “proved” in some proceeding to be false. In doing so the court declined to apply the “predictable opinion” defense, under which California courts have found that statements about pending or contemplated litigation are predictably understood as opinion and not fact. Here there was no pending or contemplated litigation, so the court found the defense inapplicable.

Other statements by Cosby’s lawyer referred to accusations as “fabricated” and “fantastical.” Applying Florida law (because the plaintiffs in question lived there), the court found that the statements could be construed as factual claims that the plaintiffs were lying and making false allegations against Cosby.

Finally, the court declined to apply the so-called “self-defense privilege,” a doctrine recognized in some jurisdictions that privileges statements proclaiming that an accusation is false. The court found that neither California nor Florida had adopted this privilege, and that it was only conditional and therefore defeated by the plaintiffs’ allegations that the statements were in bad faith.

Based on my experience, I believe that California courts would interpret the category of “fact” more narrowly and “opinion” more broadly than the Massachusetts federal court did in this case. California courts have generally recognized that words like “liar,” when thrown about in the context of a dispute, should be treated as non-actionable opinion. But this Massachusetts federal court decision demonstrates that even California attorneys must exercise caution in making statements in response to an accusation against a client, especially when the accusation is not about pending or threatened litigation. The court that adjudicates the statement may be in another state and may have a more restrictive view of the bounds of protected opinion. The aggressive approach – branding an accuser as a liar – may be more satisfying to the client and more conducive to good press. But the measured approach – couching a response explicitly as opinion, tying it to pending or threatened litigation, and avoiding explicit accusations of lying – are safer, especially if the accuser is litigious.

Ken White

Ken White

Ken White is a founding partner of Brown White & Osborn LLP. He focuses on criminal defense and civil litigation, and particularly on white collar crime and First Amendment issues. He is a contributor to the Brown White & Osborn LLP blog.
Ken White