Alan Dershowitz Talks Jeffrey Epstein on TV ... But Plays Chicken in Court

Alan Dershowitz Lawyer - Getty - H 2018
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For years, Alan Dershowitz has been proclaiming his innocence on the allegation that he raped Virginia Roberts Giuffre as part of Jeffrey Epstein's sexual trafficking of minors. In multiple interviews including Wednesday morning on CBS, the famed attorney has stated that he has proof that Giuffre is lying. He has expressed his intention to "demolish this woman's credibility" and insisted he's been looking to unseal court documents because they would prove he was deliberately framed for financial reasons.

So why is Dershowitz now looking to dodge his best opportunity at clearing his name?

In April, Giuffre filed a defamation lawsuit against Dershowitz. That fact alone isn't surprising. As #MeToo is quintessentially a movement of speech empowerment, courts are naturally witnessing an uptick in libel cases on the sexual misconduct front.

On one end, there are those who have been accused of sexual misconduct who are suing over statements that they claim are reputation-busters. Take, for example, Johnny Depp's $50 million suit against Amber Heard over a Washington Post op-ed. Or check out a suit brought last week by Douglas Haynes, the former president of Steve Cohen's Point72 hedge fund, against a female employee as well as Wigdor LLP, her law firm, over tales of harassment and discrimination delivered to The New Yorker, CNBC and CNN. (Here's the complaint.)

On the other end, there are those who say they have been sexually victimized and are now looking to use defamation laws to punish their aggressors for denying acts that might otherwise be outside the statute of limitations. See those who have hounded Bill Cosby in civil court. Or take the ongoing suit brought by former Apprentice contestant Summer Zervos against Donald Trump.

Dershowitz, the former O.J. Simpson lawyer whose book Reversal of Fortune became a 1990 movie starring Jeremy Irons in an Oscar-winning turn, deserves his own category — somewhere in the middle, a guy who fights allegations of sexual misconduct by soliciting a defamation suit where he's the defendant.

On March 2, Dershowitz tweeted, "I hereby accuse my false accusers of committing the felony of perjury and challenge them to sue me for defamation. They won’t, because they know the truth will land them in prison."

Most people would probably interpret this as an invitation for truth-settling in court, but now that Giuffre has taken up the challenge, Dershowitz is, to use a legal term of art, playing chicken. And what's galling about what's happening is that those who are merely watching Dershowitz's cries of innocence in TV interviews probably have no idea. On Wednesday morning, CBS News, for example, addressed Giuffre's defamation suit and Dershowitz's dismissal motion but omitted any of the nuance that showcases Dershowitz's utter cowardice. After brazenly entreating the very court action at hand, Dershowitz is attempting to seize on technicalities and broad immunities to elude fact-finding. That's not the impression conveyed on television. CBS viewers may believe there to be a war of words in court about the alleged occurrence of rape. In actuality, hardly.

Seeking dismissal at the pre-answer phase, Dershowitz brings two big arguments in his motion (read here). If successful, he'll avoid discovery, skirt a presentation of evidence for summary judgment, and sidestep any trial.

First, he posits that he's been essentially saying the same stuff for years. His denials of rape, his accusations of perjury and extortion ... all just variations on the same core statement. He also thinks of himself as so much a celebrity that his words reach a global audience anytime he speaks through the media. As such, Dershowitz contends that Giuffre's defamation claims are time-barred under the statute of limitations, and under the "single publication rule," the deadline to sue passed a year from when Dershowitz first denied being a participant in Epstein's alleged sex trafficking of minors. In other words, even if Dershowitz is a rapist, even if he knows he's a rapist, and even if he maliciously accused Giuffre of lying about the rape, there aren't consequences for his statements.

Giuffre's lawyers, in opposition to the dismissal motion (read here), respond that Dershowitz's statements aren't outside the statute of limitations because they are not the same statements and because they reached new audiences in new publications — and even if the judge buys the said-that-before argument, Dershowitz's statements constituted "republications" that trigger a new clock for bringing suit.

Second, Dershowitz contends that saying he's no child sex abuser is protected under the qualified self-defense privilege. He argues that First Amendment jurisprudence recognizes that when it comes to the court of public opinion, a so-called "right of reply" allows one to protect their reputation. As long as he doesn't abuse such privilege with irrelevant fodder or by being disproportionate to the accusations, Dershowitz again essentially asserts his freedom to say what he wants — even potentially lie about not being a rapist — without consequence for his statements. 

Giuffre's lawyers respond that such privilege only exists if the statements are made without "malice." (Among the precedent cited is one of the Cosby cases.) The opposition brief also points out that Dershowitz hasn't denied his statements were defamatory but for timeliness and self-defense privilege. Because of the early posture of the case, Dershowitz doesn't yet have to do this, but it's often routine. Sometimes, defendants avoid making explicit denials due to the consequences of being untruthful in verified court papers. But that's a subject for another day.

In the meantime, every defendant of course has a right to a defense, and Dershowitz, like other public figures, is free to question whether the plaintiff has met pleading standards for a defamation case — factual not opinionated statements, made with actual malice, and in a timely fashion.

But again, this is no ordinary case. In the rubric of libel cases on the sexual misconduct front, this one is rather unique. Dershowitz trolled Giuffre into suing and also used his bully pulpit to convey the impression to everyone that the case would be fought on the merits. Instead, he's waving the First Amendment flag, and while that is all good and well, his right to speak isn't what he supposedly aims to vindicate. In sum, Dershowitz is no ordinary defendant, and so the next time he's brought on television, the interviewers may want to keep in mind that he's now looking to dodge the very test of truth he called for, and that he holds the position that his statements about rape carry a privileged air of immunity.