This court ruling could silence victims of sexual misconduct

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Story highlights

  • Johnita Due: A recent Massachusetts federal appellate court ruling dismissed a defamation case against Bill Cosby
  • This decision may slow the momentum behind women coming forward with their stories of sexual harassment and abuse
  • If they go public, they risk being defamed by the accused and unable to successfully defend themselves, writes Due

Johnita P. Due is vice president and assistant general counsel for CNN. The opinions expressed in this commentary are hers.

(CNN)The movement empowering women to speak up publicly about sexual misconduct against them has been spreading like wildfire across the media and entertainment industries -- and beyond. We've seen the effects this week with public accusations of sexual harassment being made against a Hollywood director, a celebrity chef, a political journalist and even a former president.

Many are hopeful that the voices speaking up will, finally, break the culture of acceptance, turning a blind eye and silence about sexual harassment and assault in our society. There is often a fear that speaking up will lead to some sort of retaliation by the accused, with accusers' reputations at stake. That is why there is often strength in numbers, and as more women speak up and say #MeToo, the more that men in positions of power or authority over women will be held accountable.
Johnita Due
But a Massachusetts federal appellate court ruling last week dismissing a defamation case against Bill Cosby seems dissonant with this growing movement. As a result of the case, women whose characters are maligned by the men they publicly accuse of sexual misconduct could face a great hurdle if they bring defamation actions to restore their reputations. Based on the ruling, raising their voices in the media might force them to meet a higher burden in order to prevail in court.
    This particular case involved Kathrine McKee, a former actress and now casting agent, who alleged in a New York Daily News interview on December 22, 2014, that Cosby raped her in a hotel room in 1974. She revealed the alleged rape after more than 20 other women had already come forward with their own accusations of sexual assault.
    The same day then-Cosby attorney Martin Singer emailed the Daily News a letter rebutting the allegations made by McKee and the other accusers, rebuking the paper for publishing this "never-before-heard tale" and for ignoring or failing to investigate what he called "evidence undermining [McKee's] reliability" -- which he listed in bullet points with numerous accompanying footnotes, including links to articles.
    Although the Singer letter was marked with the words "Confidential Legal Notice" and "Publication or Dissemination is Prohibited," McKee alleged that it was leaked to the media by the Cosby camp. The letter was reported on by news media covering the Cosby controversy. McKee sued Cosby for defamation on the basis of the statements in the letter.
    "McKee came forward after more than twenty other women had levelled [SIC] highly publicized sexual assault accusations against Cosby, who in response allegedly hired a team of lawyers and investigators 'to discredit them, to intimidate them, and to intimidate any future would-be accusers.'"
    However, the judge found that the very act of speaking up publicly against Cosby made McKee a public figure for the purposes of her defamation action, i.e. a "limited purpose" public figure:
    "By purposefully disclosing to the public her own rape accusation against Cosby via an interview with a reporter, McKee 'thrust herself to the 'forefront' of this controversy, seeking to 'influence its outcome.'" (citing US Supreme court case Gertz v. Robert Welch, Inc.)
    In other words, McKee would have to meet the highest standard in a defamation case -- the actual malice standard -- which the US Supreme Court has reserved for public officials and figures.
    This actual malice standard requires that a plaintiff who is classified as a public figure in a defamation action must show that a defendant knew the things s/he was saying were false or s/he had a reckless disregard for the truth.
    In contrast, a private figure would only have to prove that the defendant acted negligently in making false statements about her, i.e. by not exercising reasonable care to determine if the statements were false. It is much harder to prove actual malice (knowledge of falsity or reckless disregard for the truth) than negligence.
    The appellate judge determined that McKee had failed to meet that burden. In affirming the lower court's decision to dismiss McKee's defamation case against Cosby, the court ruled that most of the statements made in Singer's letter constituted his opinion, which was not actionable under defamation law, and to the extent the statements in the letter were not considered opinion, McKee, as a limited purpose public figure, had failed to meet that higher actual malice standard required of public figures.
    As the Harvey Weinstein controversy has made painfully evident, even high-profile celebrities and entertainers -- who would normally be classified as public figures anyway in defamation actions -- have been fearful about sharing their stories of sexual harassment, assault and rape.
    This ruling could greatly impact all of the lesser-known individuals across industries, normally private figures, who have to make a difficult decision: stay silent, or speak up against sexual misconduct and risk attacks on their character that they may not be able to vindicate in defamation actions because of the higher burden they must meet.
    The McKee decision is only the latest ruling in the defamation cases against Bill Cosby by his accusers. Some courts have ruled in favor of other accusers and denied Cosby's motion to dismiss, finding that a November 21, 2014, statement by the Cosby attorney implying that the accusers' allegations were completely fabricated was not protected opinion, and that the accusers should be considered private figures at that stage of the litigation. (Ironically, the judge who ruled against Cosby in that case had ruled in favor of Cosby in the McKee case).
    And in a case stemming from the same November 21, 2014, Cosby attorney statement, another court granted Cosby's motion to dismiss, based on the protected opinion defense, without addressing the question of whether the accuser should be considered a public or private figure.
    These inconsistent rulings in the defamation cases against Cosby make it difficult to predict whether sexual misconduct victims will always be classified as public figures simply because they've spoken up to give public accounts of the crimes against them. But they should be aware of that real possibility, based on the McKee decision.
    Of course, nobody deserves to be falsely accused of sexual misconduct, and anyone publicly accused of sexual misconduct deserves the right to publicly defend themselves. Both Cosby and Weinstein have consistently denied all allegations of nonconsensual sexual conduct. False accusers could exist, even when there are allegations by dozens of women spanning decades.
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    However, if in response to such allegations, the accused are permitted to make false statements about their accusers to discredit their reputations and succeed in getting defamation lawsuits dismissed simply because the accusers have been brave enough to publicly reveal the sexual misconduct, women (and men) may be dissuaded from speaking up.
    Were it not for the courageous voices speaking out publicly in the last two weeks, there would be less accountability for sexual misconduct. Yes, women should report allegations to human resources, the EEOC and law enforcement authorities where possible, but it is the media they have used to galvanize a movement.
    Despite the McKee court ruling, the editorial in The New York Times v. Sullivan, the case which established the actual malice standard during the civil rights movement, reminds us that we must "heed their rising voices, for they will be heard."