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A N 8 8 D 8 B 1 AR SINCE www. NYLJ.com Volume 260—NO. 23 Thursday, August 2, 2018 Outside Counsel Expert Analysis Victim Defamation Claims In the Era of #MeToo

he Me Too era has featured 54 (1st Cir. 2017) involved a private a surge in sexual mis- individual, Katherine McKee, who conduct claims against became a “limited-purpose” public elected officials, celebri- figure by virtue of her public com- ties and prominent busi- ments concerning her alleged assail- nesspersons. T Some of these public By And ant, entertainer Bill Cosby. Mark S. Elizabeth figures have admitted wrongdoing Mulholland S. Sy ‘Hughes v. Twenty-First tacitly or even with explicit public Century Fox, Inc.’ apologies. Others have sought to discredit their accusers – often Recent cases show that not only Plaintiff Hughes alleged that with sharp counter-accusations of famous figures, but historically she was assaulted and raped in dishonesty, consensual relations “private” individuals as well who her hotel room in 2013 by Fox or a mixture of the two. Counter- elect to speak out publicly regard- anchor and host Charles Payne. accusations against the typically ing their sexual claims, will need to Hughes, 2018 WL 1940175, at *1. female complainant – if false – may show actual malice to prevail on a create further injury – and can give related defamation claim. The for- rise to seemingly viable defamation mer group because they are “public The actual malice standard claims. Nonetheless, if the accuser figures” in the traditional sense, and poses an evidentiary hurdle is or becomes a public figure her- the latter because they find them- that alleged victims may be self, she will need to plead and selves classed as “limited-purpose” unable to clear. prove “actual malice,” to prevail public figures under defamation law. on her defamation claim. Two recent cases involving defa- Hughes further alleged that, “[w] The actual malice standard poses mation claims filed by alleged vic- hile humiliating and traumatizing, an evidentiary hurdle that alleged tims of sexual assault highlight this like many sexual assault victims, victims may be unable to clear. development. One of the cases, [she] chose not to report the inci- Hughes v. Twenty-First Century Fox, dent.” Id. According to Hughes, Inc., No. 17CV7093, 2018 WL 1940175 she received increased opportu- Mark S. Mulholland is a senior litigation partner and the former managing partner of (S.D.N.Y. Apr. 24, 2018) involved nities to appear on various Fox Ruskin Moscou Faltischek in Uniondale, New Fox news personality Scottie Nell programs – so long as she main- York. He is also the co-chair of the firm’s litiga- tion department. Elizabeth S. Sy is an associate Hughes, a known public figure. The tained an alleged quid pro quo in the firm’s litigation department. second, McKee v. Cosby, 874 F.3d sexual relationship with Payne. Id. Thursday, August 2, 2018

Hughes claims that she ended the on the basis of the actual malice Shortly after the publication, relationship in 2015, and thereafter standard: Cosby’s then-attorney Mar- suffered swift retribution; Hughes “[A]ctual malice in a defamation tin Singer wrote a letter to the alleged that her television appear- claim focuses primarily on what Daily News rebutting McKee’s ances declined and opportunities a defendant knew or believed allegations, by referencing news diminished, as Fox blacklisted her at the time a purportedly false articles quoting McKee, and across the industry. Id. statement was made. While an criticizing the paper for failure Hughes alleged, inter alia, defa- inquiry into the defendant's state to properly investigate. Id. at 62. mation – based on Fox’s alleged of mind at the pleadings stage is The First Circuit observed that false statements to the National sometimes better left for discov- McKee came forward after several Enquirer “mischaracteriz[ing] the ery, the complaint's allegations other women levelled highly pub- nature of the sexual relationship regarding Payne suggest nothing licized sexual assault accusations as consensual.” Id. at *5. Hughes more than the whimsical ups and against Cosby, who then “alleg- asserted that Fox and Payne delib- downs of a scorned lover who, edly hired a team of lawyers and erately provided the magazine for nearly two years, expressed investigators ‘to discredit them, with false statements in fear that “romantic interest” in Hughes, to intimidate them, and to intimi- “Hughes would publically disclose and reciprocated her “willing- date any future would-be accus- her story about rape, discrimina- ness to engage in sexual con- ers.’” Id. tion and blacklisting first, causing duct with” him. In view of these The First Circuit concluded another wave of negative publicity allegations, Hughes fails to plead that under these circumstances, against Fox.” Id. at *14 (emphasis that Payne's statements main- McKee rendered herself a limit- in original). taining the consensual nature of ed-purpose public figure, hav- Since Hughes admitted that she is the affair were made with actual ing raised her voice to the press a public figure, the court dismissed malice. Id. (citations omitted). and invited public scrutiny. Id. her defamation claims for failure The district court’s dismissal in (“McKee ‘thrust’ herself to the to allege that the defendants made Hughes showcases the pleading ‘forefront’ of this controversy, the statements with actual malice, and proof burdens facing alleged seeking to ‘influence its out- i.e., with knowledge of falsity or assault victims who – as public come.’”). Under the heightened reckless disregard of the truth. figures – challenge as defamatory standard applicable to McKee as a See Id. at *15. The court examined an alleged assailant’s public and limited-purpose public figure, the three separate defendants’ state- predictably humiliating denials. court affirmed the district court’s ments to the magazine, applying decision that the complaint failed ‘McKee v. Cosby’ the actual malice standard to each. to “allege facts plausibly suggest- As to the two Fox managers who In McKee v. Cosby, the First Cir- ing [Cosby] knew the statement contacted the newspaper, the court cuit examined whether an alleged attributed to [McKee] by the [ref- concluded that the complaint was defamation victim may relinquish erenced news article] was not bereft of particularized facts evi- her status as a private claimant by actually uttered by [McKee] or dencing in a clear and convincing raising her assault claims publicly recklessly disregarded that pos- manner that they “knew or w[ere] outside the courtroom. 874 F.3d sibility.” McKee v. Cosby, 236 F. highly aware, that the statement 54, 62 (1st Cir. 2017). In McKee, Supp. 3d 427, 453 n. 25. (D. Mass. Fox fed to the National Enquirer Katherine McKee alleged in a New 2017), aff'd, 874 F.3d 54 (1st Cir. was untrue.” Id. York Daily News interview that 2017). Even as to the alleged assailant Cosby had raped her in a hotel On April 19, 2018, McKee peti- Payne, the district court dismissed room in 1974. Id. at 58. tioned the United States Supreme Thursday, August 2, 2018

Court to review the First Circuit’s from recovering damages for continuing access to the media. holding. defamation without first proving Lerman v. Flynt Distrib. Co., 745 “actual malice.” New York Times F.2d 123, 136-37 (2d Cir. 1974), cert. Private vs Public Figure Co. v. Sullivan, 376 U.S. 254, 279-80 denied, 471 U.S. 1054 (1985). The threshold determination (1964). This heightened standard There are two justifications for of whether an individual is a pri- subsequently was extended first to imposing the heightened standard vate or public figure is of utmost public figures (see Curtis Pub. Co. on public and limited-purpose pub- importance in a defamation case, v. Butts, 388 U.S. 130 (1967)), and lic figures. First, these individuals with the outcome frequently pre- then to “limited-purpose” public invite attention and comment by ordained if not determined on this figures – meaning “an individual placing themselves in the public question alone. Private figures [who] voluntarily injects him- eye. Gertz, 418 U.S. at 345. Second, receive the broadest protection self or is drawn into a particular they have greater access to media against defamatory comment and public controversy and thereby than the average citizen, and can are required to meet only the “less becomes a public figure for a lim- utilize their relative media influ- stringent standard” of negligence ence to rebut defamatory state- to prevail on a defamation claim. ments through interviews, talk Machleder v. Diaz, 801 F.2d 46, 54 The heightened pleading and show appearances and the like. (2d Cir. 1986). Only when the state- proof standards in those See, e.g., Celle v. Filipino Reporter ment relates to a matter of “legiti- defamation cases will protect Enterprises Inc., 209 F.3d 163, 176 mate public concern” will a private alleged assailants who choose (2d Cir. 2000) (holding that plain- figure need to prove more. Private to denounce publicly their tiff media owner had access to the individuals claiming defamation in putative victims’ charges. “channels of communication” to those instances must prove that rebut accusations). the defendant acted “in a grossly ited range of issues.” Gertz v. Rob- History indicates that charges irresponsible manner without due ert Welch, Inc., 418 U.S. 323, 351 and accusations of sexual mis- consideration for the standards (1972). conduct by elected officials, enter- of information gathering and dis- Public figures are those who tainers and industry leaders will semination ordinarily followed by achieve fame, gain notoriety for continue to play out publicly. Defa- responsible parties.” Chapadeau v. their achievements and are in mation claims by assailants and Utica Observer-Dispatch, 38 N.Y.2d positions of persuasive power and victims alike inevitably will remain 196, 199 (1975). A statement is one influence. See Gertz, 418 U.S. at a part of the landscape in these of “legitimate public concern” if it 351. Elected officials, celebrities, high profile disputes. The height- can be “fairly considered as relat- prominent businesspersons, musi- ened pleading and proof standards ing to any matter of political, social cians, athletes and political com- in those defamation cases will pro- or other concern of the commu- mentators naturally fall under this tect alleged assailants who choose nity.” Huggins v. Moore, 94 N.Y.2d characterization. to denounce publicly their putative 296, 304 (1999). “Limited-purpose” public figures victims’ charges. This aspect of are those who (1) invite public defamation law likely will become Public Figure attention prior to the subject inci- better and more widely understood In New York Times Co. v. Sulli- dent; (2) voluntarily inject into a as civil litigations in this context van, the United States Supreme public controversy related to the continue to unfold. Court unanimously heightened subject incident; (3) assume a posi- Reprinted with permission from the August 2, 2018 edition of the NEW YORK the standard as it applies to pub- tion of prominence in the public LAW JOURNAL © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact lic officials, by preventing them controversy; and (4) maintain 877-257-3382 or [email protected]. # 070-08-18-05