Defamation law and #MeToo

In 2018, actor Amber Heard published a column in the Washington Post urging support for women who speak about domestic violence. She mentioned her own experience with DV to illustrate the need for change. Amber didn’t specifically mention the alleged abuser by name, but her ex-husband Johnny Depp responded with a $50million defamation lawsuit against her the following year, arguing that her claims were an “elaborate hoax to generate positive publicity” and that she “painted on” bruises shown in a photo published during their divorce. As the trial began on Tuesday, broadcasting live and involving a number of high-profile witnesses, it has bought defamation’s connection to #MeToo cases in to the spotlight.

Defamation law has increasingly been used in the past few years as a response to #MeToo stories and other public allegations of harm. Abusers, especially those with money and power, can retaliate against victims and attempt to use the court system to shift the narrative with a defamation lawsuit.  

“It’s such a beautiful moment right now, where victims are finding their voice, and finding a community. It’s heartbreaking that they then are met with litigation and retaliation,” C.A. Goldberg founder Carrie Goldberg explained in Mother Jones in 2020.  “But on the other hand, it’s important for people to know the risks if they come forward.”  

Abusers attempt to use courts as their own personal PR concierge 

As perhaps the busiest MeToo defamation defense firm in the country, we see plenty of retaliatory defamation suits brought by predators that are designed to sway public opinion, discredit, humiliate and retraumatize victims. We have represented more than 20 people who spoke out and were met with their abuser weaponizing defamation law again them.  

    “Rarely will a plaintiff-abuser actually be able to disprove an assault or abuse, but abusers sue because they think that will somehow help their public profile – as if by calling their accuser a liar, the public will believe the allegations are untrue,” Goldberg said. “Mostly, the abuser’s goal is to bring the lawsuit to intimidate the other person into retracting and apologizing.” 

You can fight back  

While it’s important for victims to know the risks of litigation and retaliation if they come forward, it’s also important for them to know that though defamation suits are filed – they don’t always have the desired effect, and you can fight back. Better still – you can assemble your support team before going public and have strategy in place should your abuser lash out.  

In an article published last week on Depp’s defamation case, Carrie Goldberg told the Guardian: “You’d expect the increase in high profile defamation lawsuits against women discussing prior sexual assaults and intimate partner violence to have a silencing effect on victims wanting to talk about their traumas. But instead, we’re seeing that victims with something to say are getting savvier about how to discuss their abuse while protecting themselves from litigation. We’re getting more cases where survivors of assault and abuse come to us for legal advice before sharing their stories.” 

“Rarely will a plaintiff-abuser actually be able to disprove an assault or abuse, but abusers sue because they think that will somehow help their public profile – as if by calling their accuser a liar, the public will believe the allegations are untrue,” Goldberg said. “Mostly, the abuser’s goal is to bring the lawsuit to intimidate the other person into retracting and apologizing. 

Truth is a defense to a defamation claim. And thankfully, the media and public are getting more savvy about DARVO tactics – deny, attack, and reverse victim and offender – which are design to question an victim’s credibility while recasting the accused as the true victim.  

“Victims with something to say are getting savvier about how to discuss their abuse while protecting themselves from litigation. We’re getting more cases where survivors of assault and abuse come to us for legal advice before sharing their stories.” 

How we can help 

  • Pre-publication risk assessments: For people interested in getting their story out there, we can read what you want to publish – your article, letter, book, screenplay, tweet, whatever – and advise you on the risks of defamation in your particular case with your particular offender.  We all know that truth is a 100% affirmative defense in defamation lawsuits, however being truthful does not always prevent a lawsuit. 
  • Cease and Desist:  If you got a letter accusing you of defamation, now is a key time to hire a lawyer to assess if it’s a bluff or a legitimate precursor to a lawsuit.  We can explore options to deter litigation. But even if you are like some of our clients who say bring it on to litigation, we have an important job to get you prepared for what’s to come.  
  • Negotiate:  If something bad has happened to you, you have the right to talk about it. Some offenders will pay you a lot of money not to sue them and/or not to speak about it.  At this firm, we believe everybody has the right to decide whether to accept money in exchange for not suing or publishing the truth.  We’ve gotten two seven figure settlements and many millions combined in six figure settlements for clients. It is our policy to negotiate agreements so that our client can still speak to his or her therapist about what happened and can without revealing personally identifiable information about the offender, speak publicly about their experience. 
  • Defamation defense:  If you’ve been sued, we can defend you if you are in NY, NJ, CA, or CT.  Sometimes we will also work in other states with local co-counsel.  About 30 states now have Anti-SLAPP statutes which offers an accelerated way to get speech-based lawsuits dismissed and has the added punch of transferring legal fees and costs of litigation from the defendant (you) to the plaintiff if we succeed in getting it dismissed. 
  • Offense: If you’re being defamed or your privacy is being invaded, we of course go on the other side and send out the cease and desists and file defamation lawsuits. 
     

 

Here’s a select round-up of defamation laws, and whether the state has an Anti-SLAPP statute:  

 

State: 

New York  

Elements: 

  • A false statement about the plaintiff. • Published to a third party without authorization or privilege. • Through fault amounting to at least negligence on the part of the publisher. • 

The statement either constitutes defamation per se or caused special damages. (Trent v. Town of Brookhaven, 966 F. Supp. 2d 196, 207 (E.D.N.Y. 2013).)  

Statute of Limitations 

One year (CPLR 215.)  

Anti-SLAPP 

Yes – N.Y. Civ. Rights § 70-a & 76-a (2020).  

 

State: 

California  

Elements: 

The intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage. (Makaeff v. Trump Univ., LLC, 715 F.3d 254, 264 (9th Cir. 2013).) 

Statute of Limitations: 

One year (Cal. Civ. Proc. Code § 340(c).) 

Anti-SLAPP: 

Yes – Cal. Civ. Proc. Code § 425.16 (2019).  

 

State: 

New Jersey  

Elements: 

The assertion of a false and defamatory statement concerning another. One year (N.J.S.A. 2A:14-3.) Yes None Defamation 50 State Survey 10 Last updated March 2022 State Elements Statute of Limitations Defamation Per Se Anti-SLAPP • The unprivileged publication of that statement to a third party. • Fault amounting at least to negligence by the publisher. (Restatement (Second) of Torts § 558; Ziemkiewicz v. R+L Carriers, Inc., 996 F. Supp. 2d 378, 395 (D. Md. 2014).) 

Statute of Limitations: 

One year (N.J.S.A. 2A:14-3.) 

Anti-SLAPP: 

None 

 

State: 

Connecticut  

Elements: 

The defendant published a defamatory statement. • The defamatory statement identified the plaintiff to a third person. • The defamatory statement was published to a third person. • The plaintiff’s reputation suffered injury resulting from the statement. (Thibodeau v. Am. Baptist Churches of Conn., 994 A.2d 212, 222 (Conn. App. Ct. 2010).)  

Statute of Limitations: 

Two years (Conn. Gen. Stat. Ann. § 52-597.) 

Anti-SLAPP: 

Yes – Conn. Gen. Stat. Ann. § 52-196a (2019).  

 

Remember: the law varies widely from state-to-state so specific advice from a qualified and experienced attorney is important to understand what applies to your unique situation.  

The above are the states in which our attorneys are admitted, but we frequently help clients nationally.  

 

Now read:  

  • Our 9th Circuit Amicus Brief in Wynn v Bloom: WHEN RICH, POWERFUL MEN ARE ACCUSED OF SEXUAL MISCONDUCT THEY’LL DO PRETTY MUCH ANYTHING TO SHUT THEIR ACCUSER UP. DISCREDIT THE VICTIM, THREATEN THE VICTIM, LIE, CRY, REVAMP THEIR IMAGE WITH A NEW BOOK/BABY/MOVIE, DEPLOY BULLSH*T DEFAMATION LAWSUITS AGAINST THE VICTIM’S ATTORNEY…  
  • EVENT: Speaking Out Online: Perspectives from Survivors, Researchers, and Lawyers Join C.A. Goldberg and friends at the NY Cyber Abuse Task Force for a short, free online conference discussing the increasing threats of defamation and lawsuits faced by gender-based violence survivors who disclose their abuse online.

 

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