On Thursday, Sean Penn filed an amended complaint in his defamation lawsuit against Empire co-creator and Oscar-nominated filmmaker Lee Daniels. The court documents now come with a declaration from pop superstar Madonna herself that Penn never struck her during their relationship in the 1980s.
In a September interview with The Hollywood Reporter, Daniels attempted to defend 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.”
For this quote, Penn brought a $10 million lawsuit, alleging that he was falsely accused by Daniels of hitting women by being likened to Howard.
Daniels raised a First Amendment defense in an effort to get the lawsuit tossed, but before the case gets any further, Penn has a few things to add, including Madonna’s own sworn statements.
Given a couple decades’ worth of salacious stories about the Penn-Madonna marriage, which lasted between 1985-1989, the singer speaking up about this topic under penalty of perjury marks a remarkable development from at least a social standpoint. In her declaration, Madonna addresses two incidents that frequently come up in the media — one in 1987, another in 1989 — and denies she was struck by a baseball bat, tied up or physically assaulted. From her declaration:
Daniels is defending himself by arguing that what he said in his interview doesn’t rise to defamatory meaning. In a motion to dismiss that will probably be mooted as a result of the amended complaint (though he can bring it again), Daniels said that Penn’s lawsuit “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.”
Penn, represented by attorney Mathew Rosengart, hasn’t brought an opposition, but nevertheless has a retort.
“Unfortunately for Daniels, his statements — which by direct reference to Howard’s misconduct, falsely accuse Penn of committing serious, multiple crimes against women — are not protected by the First Amendment,” states the amended complaint. “As Justice Oliver Wendell Holmes famously observed almost 100 years ago, the First Amendment is not absolute. Just as it does not protect a person from ‘shouting fire in a crowded theater,’ it also does not protect defamatory conduct.”
As Penn is a public figure, he will need to show that Daniels acted with actual malice in his statement. Daniels says there was none while Penn in his court papers attempts to show that the filmmaker was reckless, that he could have “check[ed] his facts” by contacting the Los Angeles District Attorney’s Office or by checking with Penn himself. Both share the same talent agency and are said to have numerous mutual friends.
“The fact that Penn felt the need to replace his initial complaint with a new filing is an undeniable concession that he viewed his original complaint as a loser,” said Daniels’ camp in a statement on Thursday. “We don’t believe the new iteration will fare any better, as it does not change the fact that the statement is an opinion protected by the First Amendment.”