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Lee Daniels could have simply denied Sean Penn’s allegations in a $10 million defamation lawsuit. Instead, the Empire creator is shooting for the moon with an attempt to dismiss Penn’s lawsuit at an early stage. In court papers filed in New York state court on Thursday, Daniels slams his legal adversary for attempting to chill constitutionally protected free speech.
Penn sued Daniels in September over a comment that Daniels had made. In an interview with The Hollywood Reporter published earlier that month, Daniels defended Empire star Terrence Howard over media reports of domestic trouble. “[Terrence] ain’t done nothing different than Marlon Brando or Sean Penn, and all of a sudden he’s some f—in’ demon,” Daniels told THR. “That’s a sign of the time, of race, of where we are right now in America.”
The lawsuit from Penn, who denies ever hitting women, alleges this is defamation because it “falsely equates” Howard with Penn.
Today, Daniels responds that his comment represents non-actionable opinion and is not susceptible to defamatory meaning.
As such, his motion to dismiss states, “Penn’s Complaint is merely a blunt-force instrument wielded in an attempt to control the narrative of his life and to expunge alleged misdeeds sensationalized by the press for decades. Worse yet, the Complaint attempts to silence Daniels’ honestly held opinion, a contribution to the marketplace of ideas voiced during the nation’s agonizing debate about racial disparity and domestic violence. The First Amendment abhors attempts to chill speech on hot topics.”
Because this is a motion to dismiss rather than a motion for summary judgment, the judge is obligated to accept plaintiffs’ version of events in the pleading. Daniels’ challenge is convincing the judge that even on its face, what Daniels said can’t be proven true or false, has no implications that would get a reader there and is naked opinion.
The bulk of the motion (read here in full) is devoted to supporting this goal, with word that the supposed imputing of criminal behavior on Penn’s part would only be seen by those reading Howard’s interview and doing an independent investigation. Daniels further argues that both the context of the article (his discussion of the Empire phenomenon) and the broader social context (diversity in Hollywood, how the media treats racial issues) both signal opinion.
Despite being constrained by what a judge will accept at the motion to dismiss phase, Daniels nevertheless attempts to argue the absence of actual malice. Not only that, but Daniels puts forward a “substantially true” defense — pointing to “a quarter century of regular media coverage on Penn’s alleged domestic abuse” (which pertains to his relationship in the late ‘80s with Madonna) — and makes a provocative “libel proof” argument that would in most circumstances be an issue reserved for a jury, or at least a judge after some factual investigation.
Daniels’ attorney James Sammataro states that a Google search of “Sean Penn and domestic violence” produces 432,000 results. “Given the volume and breadth of the publicity regarding Penn’s alleged domestic abuse, together with the severity and specificity of Penn’s alleged actions, the Challenged Statement could not have harmed his already tarnished reputation on the topic of domestic abuse,” he writes.
Penn will, of course, oppose the dismissal motion. If he succeeds, the case would move to a discovery phase that could certainly be risky (at least from a P.R. standpoint) for both sides.
Matthew Rosengart, Penn’s attorney, says he is relishing that opportunity.
In a statement about Daniels’ motion, Rosengart says, “The defendant’s statements were false, outrageous and defamatory, and his strained efforts to justify them are unavailing and often nonsensical. The claim that the suit was brought to suppress a free-speech right is facially absurd. The defendant’s defamatory statements obviously served no legitimate or other journalistic purpose. To the contrary, the defendant defamed Mr. Penn (and Marlon Brando), for his own personal aggrandizement and profit, to serve his own economic and personal agenda and to promote and brand his television show. We look forward to prosecuting our case in court.”
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