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Bill Cosby has a lot of legal problems, and he is now preparing to ask the U.S. Supreme Court for review. But it’s not over the comedian’s sexual assault conviction in April. That case may eventually get to the high court, but for now, Cosby wants the justices to weigh in on a defamation lawsuit he’s defending against former supermodel Janice Dickinson. On Friday, in an application for an extension, Cosby’s lawyer told Supreme Court Justice Anthony Kennedy of a coming petition for writ of certiorari.
Dickinson, who accuses Cosby of drugging and raping her in the 1980s, is suing over a press statement from Cosby’s former attorney Marty Singer. As the Cosby scandal began heating up in 2014, Singer told media outlets that Dickinson’s story was “fabricated and is an outrageous defamatory lie.”
This past November, a California appeals court allowed Dickinson to move forward in her defamation lawsuit. In the decision, legally noteworthy for multiple reasons, California associate justice Laurence Rubin rejected Cosby’s assertion that Singer’s letter to media outlets merely conveyed opinion rather than provable facts.
“Cosby takes the position that the demand letter is not actionable as it is simply Singer’s opinion, based on fully disclosed facts,” wrote Rubin. “We disagree. As we shall explain, nearly every factor of the totality of the circumstances test points strongly toward the conclusion that a reasonable fact finder could conclude the demand letter states or implies a provably false assertion of fact — specifically, that Cosby did not rape Dickinson, and she is lying when she says that he did.”
What made this assessment extra-interesting was that other courts throughout the nation, when analyzing Singer’s statements on behalf of Cosby in connection with defamation lawsuits brought by other Cosby accusers, came to differing conclusions about whether denying a rape allegation and branding someone a liar could rise to an actionable statement.
In Cosby’s application, his lawyer Becky James at Greenberg Gross highlights two of the embattled entertainer’s successes on the defamation front.
“The opinion places California First Amendment law in direct conflict with the decisions of two federal courts of appeal,” writes James. “See McKee v. Cosby; Hill v. Cosby. Both the First and the Third Circuits held that denials by the same attorney in response to the same types of allegations against the same client are protected by the First Amendment as non-actionable opinions.”
McKee v. Cosby refers to a case brought by Katherine McKee, who says Cosby raped her in a Detroit hotel room in 1974. The dismissal of her own defamation lawsuit was upheld by the 1st Circuit, and McKee — represented by famed attorney Charles Harder — is already asking the Supreme Court to review that case by presenting the issue as whether someone becomes a limited purpose public figure who must establish actual malice simply by stating she, too, was victimized.
Cosby hasn’t yet responded to McKee’s cert petition, but now the Supreme Court will have two opportunities to weigh in on defamation law as it pertains to Cosby.
Whereas McKee presents an issue for the #MeToo era, Cosby is concerned about the space that the accused have in publicly responding to allegations. The application to Justice Kennedy refers to the Supreme Court’s 1990 decision in Milkovich v. Lorain Journal Co.
In Milkovich, then-Chief Justice William Rehnquist struggled with distinguishing opinion from fact and nodded to concerns that unduly burdensome defamation laws could stifle valuable public debate. Nevertheless, Rehnquist surprised some legal observers by writing for the majority that there was no “wholesale defamation exemption for anything that might be labeled ‘opinion,'” that even an opinionated statement so long as there’s something that’s provably false could become grounds for a defamation claim.
As Rehnquist wrote in a section in Milkovich that was picked up by Rubin in his own Cosby/Dickinson opinion, “If a speaker says, ‘In my opinion John Jones is a liar,’ he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, ‘In my opinion Jones is a liar,’ can cause as much damage to reputation as the statement, ‘Jones is a liar.’
Cosby wants the Supreme Court to reassess this holding. Here’s what his lawyer is now telling Kennedy:
“In the years since Milkovich was decided, lower courts have struggled with its application, often, as here, reaching conflicting outcomes as to virtually identical statements. Commentators have repeatedly noted the unworkability of the distinctions made in Milkovich between actionable and non-actionable statements of opinion. Nowhere is that unworkability more problematic than in this case, where the uncertainty in the law chills an attorney’s ability to effectively represent an accused client. The Court therefore should intervene to revisit Milkovich and provide clarity as to the scope of First Amendment protection in the increasingly prevalent context of statements made in response to public accusations of misconduct.”
James says she needs 30 extra days until July 12 in order to file a petition for Supreme Court review.