Bill Cosby's Legal Win Points to Rupture in Judicial Reading of Defamation Law

Two judges. Two entirely different conclusions about the same exact statement.
 AP Photo/Matt Rourke

How do you solve a problem like Bill Cosby? It's now clear that federal judges have come to no consensus on the matter.

On Thursday, U.S. District Judge Arthur Schwab in Pennsylvania gave the embattled entertainer a legal win by dismissing a defamation lawsuit brought by Renita Hill, who claims to have been the victim of abuse by Cosby in the mid-1980s. Schwab rejected Hill's complaint because it is based on statements that in his view represent "pure opinion."

Read the decision here.

What's notable about this development is how diametrically opposed it is to what U.S. District Judge Mark Mastroianni in Massachusetts decided last October. There, in refusing to end a defamation lawsuit brought by Cosby accusers Tamara Green, Therese Serignese and Linda Traitz, the judge remarked that statements made by Cosby's reps could be provable as true or false.

All cases are fact-dependent, of course, and different states have slightly different laws about defamation, but everything is guided by the First Amendment, and what makes this situation remarkable is that the two judges were, in part, addressing the same exact statement.

In November 2014, as Cosby increasingly came under fire in the media over rape allegations, his then-attorney Marty Singer issued a statement to the media that addressed the many accusers. 

"The new, never-before-heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago have escalated far past the point of absurdity," said Singer. "These brand-new claims about alleged decades-old events are becoming increasingly ridiculous, and it is completely illogical that so many people would have said nothing, done nothing, and made no reports to law enforcement or asserted civil claims if they thought they had been assaulted over a span of so many years."

When confronted with what Singer had said in the Massachusetts case, Mastroianni waived off Cosby's arguments that it represented an opinion and was thus incapable of defamatory meaning.

The Massachusetts judge wrote at the time that "when read in its entirety, the statement is capable of being understood as asserting not just that the allegations made during the previous two weeks were unsubstantiated, but also as implying they were false and entirely without merit."

Now compare this conclusion to Schwab's.

"The entire Martin Singer Statement is an opinionated statement; but, it is not one which implies or alleges that undisclosed, defamatory facts serve as the basis for the opinion," wrote the Pennsylvania judge in deciding to toss the lawsuit at such an early stage (without even an opportunity for the plaintiff to amend.)

There's a second split at hand — and one that has consequences beyond the Cosby saga.

In Massachusetts, Cosby asserted a "self-defense" privilege that hit a judicial wall when Mastroianni concluded that such privilege "does not permit a defendant to knowingly publish false statements of fact."

On Thursday, Schwab had no interest in such parsing.

"Any attorney for any defendant must advance a position contrary to that of the plaintiff," he wrote. "Here, Plaintiff publicly claimed she was sexually abused and raped by Defendant — which is her position; and Defendant, through his attorney, publicly denied those claims by saying the 'claims' are unsubstantiated and absurd — which is his legal position. This sort of purely opinionated speech articulated by Defendant's attorney is protected and not actionable as defamatory speech."

Judges are human and can come to differing opinions. The Cosby saga stands out because of the huge amount of public attention on the charges being made. As we wrote last week, some judges might not wish to pass on the chance to oversee a sex assault case getting such publicity. That's not to impugn their integrity. The nuances of the law can indeed be grey, and jump balls can fall in different directions.

But dismissals of defamation lawsuits on a motion to dismiss are rare. (More often, defamation lawsuits fail later.) It's also judicial splits like these (plus the involvement of well-heeled litigants) that provoke issues of consideration for appeals courts. And the topic du jour in the Cosby case just so happens to tread on an area of law — defamation — that helps define how the entertainment and media industries operate. Most reporters probably don't see themselves as being implicated by what is happening. They're wrong.

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