California lawyer Tamara Green has accused Bill Cosby of sexual assault. Bill Cosby, speaking through his publicist, characterized the accusation as “discredited” and as amounting to “nothing.” First question: is Cosby calling Green a liar? Second question: is it defamatory to call someone a liar if they’re actually telling the truth? Third question: is a celebrity personally liable for defamatory statements made by that person’s attorney or publicist? Ms. Green believes the answers to all three questions are YES, judging by the fact that she sued Mr. Cosby for defamation a few days ago in Massachusetts federal court. Personally, I’m not so sure.
Let’s begin at the beginning: what did Cosby actually say? In defamation actions, it is important to know the exact words used, lest liability be based on embellishments or mischaracterizations of those words by the plaintiff’s attorney. First of all, it wasn’t Cosby himself who responded to Ms. Green’s allegations. Her lawsuit is based on statements made by his attorney and publicist. Back in 2005, when Ms. Green first went public with her accusations in an appearance on the Today Show (video below), Mr. Cosby’s lawyer at the time, Walter M. Phillips, Jr., allegedly issued a statement calling the accusations “absolutely false” and saying that the alleged assault “did not happen in any way, shape, or form.”
Years later, in a Newsweek interview published in February 2014, Cosby’s publicist (claimed to be David Brokaw) gave Newsweek this statement: “This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing.” As if to demonstrate the reason we have a requirement here in Virginia to plead the actual words used, Ms. Green does not include this quotation in her complaint. Instead, she characterizes the statement as follows: “in an effort to continue the public branding of Plaintiff as a liar, Defendant Cosby through Brokaw stated explicitly, stated in effect, stated by innuendo, implied, and/or insinuated, that Defendant Cosby’s drugging and sexual assault against Plaintiff Green never occurred, and therefore that Plaintiff Green lied and was a liar.”
Mr. Phillips’ statements are going to be barred by California’s one-year statute of limitations, so this case is going to be about the publicist’s statements alone. (The Washington Post initially indicated that Mr. Phillips repeated his 2005 denials in 2014, but has since issued a correction clarifying that the statements described in that article were made back in 2005.)
So the first question is essentially whether characterizing Mr. Green’s allegations as “discredited,” and as having “proved to be nothing” are the equivalent of saying that Ms. Green is a liar. While I can’t speak to California law on the subject, Virginia does recognize that defamatory statements can be made by implication and innuendo and need not be made directly. Liability can arise if statements that are literally true would nevertheless cause a reasonable person to infer a false and defamatory meaning. I’m not convinced that in this case, assuming the allegations are true, Cosby’s publicist called Mr. Green a liar.
All the publicist really did was deny that Ms. Green’s version of events happened as she claimed. He didn’t say that she fabricated the story to blackmail Mr. Cosby or to gain fame. His comments leave open the possibility that she was simply mistaken about what really occurred that night in the early 1970s. By her own allegations, she was in a drug-induced “altered state” at the time, so perhaps her perception of events had been affected. The publicist’s statement seems to allow for the possibility that Ms. Green honestly believed she had been assaulted, in which case she would not really be regarded as dishonest or a “liar.”
There are other problems with Ms. Green’s legal theory. If every denial of another person’s account of an occurrence or event was treated as an implied assertion that the other person is a “liar,” the courts would be clogged with defamation actions. People would need to go out and get disagreement insurance. And what about the right against self-incrimination? Under the Fifth Amendment, criminal defendants can’t be forced to admit to the commission of a crime. Interestingly, when asked about Cosby’s denial on the Today Show, she responded, “what do you expect him to say,” suggesting that the natural and expected response to her rape allegation would be to deny it.
Let’s assume the publicist did call Ms. Green a liar, or we’ll never get to Issue #2. So he called her a liar – is that defamatory? Good luck finding a consensus on that. The issue amounts to whether calling an honest person a liar would tend to harm that person’s reputation as to “lower [her] in the estimation of the community or to deter third persons from associating or dealing with [her].” If Ms. Green’s reputation has suffered, was it the result of the publicist’s characterization of her accusations as “nothing,” or was it due to something else?
Back in 1850, the Supreme Court of Virginia held that “liar” cannot be defamatory. (See Moseley v. Moss, 47 Va. 534, 538). Today, however, I believe the correct answer would be: it depends on the lie. The key is whether being falsely accused of the lie would tend to damage reputation – in other words, would third parties be deterred from any dealings with the subject of the accusation if they thought that person was capable of telling a lie of that magnitude? For example, falsely stating that someone lied to Congress to thwart an investigation into a public safety issue would probably be defamatory. Conversely, falsely accusing someone of lying to a telemarketer about his household income would probably NOT be defamatory.
The last point I want to make about this lawsuit is that it’s possible to be sued for slander based on statements made by your agent. In this case, Mr. Cosby didn’t personally say anything; he’s being sued for something his publicist said. A principal can be held liable for the defamatory statements of his agent provided the agent made the statements while acting within the scope of his duties under the agency relationship. So if the publicist’s statements were made on behalf of Mr. Cosby and with his express or implied permission, Mr. Cosby can indeed be held accountable for them.
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