Lee Daniels Says Madonna Declaration Doesn't Save Sean Penn Lawsuit

The 'Empire' co-creator says there was no actual malice, citing past reports of abuse including a "lurid account" of Sean Penn's "domestic terror."

On Tuesday, six weeks after Sean Penn amended his $10 million defamation lawsuit against Empire co-creator Lee Daniels with an affidavit from ex-wife Madonna, a judge is being asked to dismiss the case.

Penn is suing after Daniels told The Hollywood Reporter, "[Terrence Howard] ain't done nothing different than Marlon Brando or Sean Penn, and all of a sudden he's some f—in' demon."

Daniels was referring in the September interview to Empire star Howard's reported domestic trouble. Penn saw the comparison made and asserts that he has been falsely accused by Daniels of hitting women. The actor says he's no wife abuser, and as part of the amended complaint, Madonna has submitted a sworn declaration that states, "Sean has never struck me, 'tied me up,' or physically assaulted me, and any report to the contrary is completely outrageous, malicious, reckless and false."

Now comes Daniels' scornful response (read here in full).

Even though the lawsuit comes in New York, Daniels is now attempting to use California's anti-SLAPP law, meant to deter frivolous litigation upsetting First Amendment-protected activity. Daniels points out that the statement was made in California and that Penn is a resident of that state as well.

"Regardless of whether California or New York law is applied, dismissal is required because the core of the complaint — that Daniels wronged Penn by falsely comparing Penn to someone else — is constitutionally (to quote Penn's iconic movie character Jeff Spicoli) 'bogus,'" states Daniels' memorandum.

A footnote states, "Spicoli understands the United States Constitution better than Penn," quoting the surfer-dude from Fast Times at Ridgemont High

Since Penn is a public figure, he will need to show that Daniels acted with actual malice in his statement. That means that Daniels knew his statement was false when he uttered it or had reckless disregard for the truth.

Daniels has already argued that Penn's lawsuit amounts to an attempt to chill First Amendment-protected speech and is reiterating that defense in his new motion to dismiss the amended complaint. But the Oscar-nominated filmmaker also has something to say about the Madonna declaration.

Although Madonna is now sticking up for Penn, her statement of no abuse comes after years of repeated media reports of a troubled relationship between the two in the late 1980s, when they were married. Daniels, through his attorney James Sammataro, tells the judge that whatever happened back then, he certainly was not reckless when making his comments.

As Daniels memorandum puts it, "A quarter century of unchallenged explicit, reputation-tarnishing media coverage on Penn's alleged domestic abuse vitiates any reasoned suggestion that Daniels acted with actual malice."

The court papers go on to say that what Daniels told THR "is pre-dated by decades of spine-chilling accounts of Penn's alleged violent abuse of his ex-wife Madonna," and even cites a "lurid account of Penn's domestic terror" from the 1991 book Madonna Unauthorized. One passage from the book reads, "After slapping her around, he bound and gagged her, then strapped her to a chair with twine. He berated and beat her for two hours, then stormed out of the house."

Daniels cites other sources of Penn's alleged abuse including the book Madonna Revealed and articles in The Seattle Times, the Daily Mail, the Washington Post, Buzzfeed and The Huffington Post.

The memorandum sums up the argument: "Aside from raising the obvious question — i.e., why neither Penn nor Madonna cried defamation and sued any of these prior publications — these reports (as well as other unchallenged publications from reputable media outlets), singularly and cumulatively, crush Penn’s fantastical allegation that Daniels had no legitimate basis to believe that Penn has ever been arrested or charged ... with anything related to domestic abuse. The thick dossier of Penn’s alleged abuse renders it legally impossible for him to establish that Daniels acted with the requisite actual malice."

Daniels also provides his own sworn declaration that he read articles about this, heard from acquaintances about Penn and "entertained no serious doubts as to the accuracy of the reports that Penn had committed acts of domestic violence." 

Penn will now get an opportunity to respond.

In previously court papers, the actor has argued that Daniels could have checked with the Los Angeles District Attorney's Office for verification that Penn has never been charged with domestic abuse or contacted Penn himself since they both share the same talent agency and have numerous mutual friends. Penn's attorney Mathew Rosengart has cited Justice Oliver Wendell Holmes' observation almost 100 years ago that the First Amendment is not absolute and is headed towards an argument that Daniels had a duty to investigate, that an individual can't stick his head in the sand and make reckless statements with willful blindness.

There might also be objection to Daniels' assertion that media reports went "unchallenged." For instance, Madonna told Rolling Stone in 1989 that tabloid tales of a night of terror — nine hours in bondage — was "extremely inaccurate, as they usually are."

Although a bulk of Daniels' court papers are taken up with the issue of actual malice, Daniels also is asking the court to decide if the statement is reasonably susceptible to a defamatory meaning. The defendant argues his statement is a comparison and a non-actionable opinion, especially in light of the broader social message being conveyed.

Even more provocatively, Daniels frames his statement as being mere "provocative rhetoric," incapable of forming the basis of a defamation claim when understood to be expressing a point of view. Even in instances that literally allege a crime. Daniels' attorney argues that the mere fact that Penn wasn't criminally charged doesn't dispel the overall "gist" that Penn has committed wrongs, pointing out that star NFL running back Ray Rice was not convicted of domestic violence either. He points to Penn's "brushes with the law," citing three criminal cases and even suggests there might be stuff beyond reach. 

According to the memo, "In attempting to draw a distinction between himself and Howard, Penn cites to Howard’s 2001 arrest report but not to Madonna’s infamous-yet-unavailable police report about Penn’s violence. A recent investigation that dug deeply into the whereabouts of that report concluded that its existence — and, therefore, its contents — remained incapable of being proven true or false."