Ford v. Kavanaugh: ­privilege of defamation

Marshall H. Tanick, BridgeTower Media Newswires

“Slander … is sharper than the sword.”
— W. Shakespeare,
Cymbeline (1610)

The conflagration during the recent Supreme Court confirmation of Brett Kavanaugh left a bevy of questions unresolved. But as the charges and countercharges linger, one matter that continues to be overlooked in the did-he-or-didn’t-he mystery on the Potomac is the issue of defamation.

Accusations of sexual impropriety against President Donald Trump’s nominee for the high court as well as responsive allegations of prevarication or worse against his principal accuser, Christine Blasey Ford, and others who ventured forward with their own tales of torment and aberrant behavior could fall within the classification of defamation, a legal tenet consisting of false statements of fact that harm the reputation of the subject of the remarks; slander if uttered orally and libel when memorialized in writing, electronically or other permanent form. Ferrell v. Cross, 557 N.W.2d 560 (Minn. 1997).

Among the many lingering questions, which neither the limited FBI inquiry or prior or ensuing Senate proceedings addressed, let alone resolved, is whether Kavanaugh can sue his accusers for defamation or, conversely, if they could pursue litigation against him or others who publicly condemned them for their mendacity. The inquiry draws upon many sources.

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Kavanaugh kerfuffle

The answers to those questions, like so much of the Kavanaugh kerfuffle, are muddled. As a threshold matter, statements that constitute opinions rather than assertions of provable facts are not susceptible to suit. Milkovich v. Lorain Journal, 497 U.S. 1 (1996); Capan v. Daugherty, 402 N.W.2d 561 (1987). The party claiming to be defamed must prove the statements to be materially false. Masson v. New Yorker Magazine, 501 U.S. 496 (1996); Stuempges v. Parke, Davis & Co., 297 N.W.2d 252 (Minn. 1980). This burden often can be difficult to satisfy. By the same token, parties defending defamation claims by asserting truth, may encounter an even greater difficulty proving a negative that is something, namely a sexual assault, did not occur.

For public figures like Kavanaugh, defamation lawsuits can present nearly insurmountable barriers through the requirement of the renowned decision of the U.S. Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964), holding that they must establish that the offending remarks were made with “actual malice,” meaning knowing falsity or reckless disregard for the truth. On the other hand, the justice’s antagonists, Ford and others, would generally be deemed “private” figures, enabling them to sue and prevail on much lesser proof of negligence or carelessness, rather than intentional falsification. Jadwin v. StarTribune, 390 N.W.2d 437 (Minn. 1985).

This disparity has irked Trump, who called during the campaign and afterwards, for loosening the laws of libel and slander, making it easier for governmental officials and public figures to redress attacks on their reputations and seek monetary damages for harm to it.

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Polygraphs and privileges

Lie detector and polygraph testing, which Ford reportedly took and passed, play little role in determination of the truth, While they may be useful devices for police and prosecutors in screening criminal suspects, they generally are not admissible in legal proceedings in most jurisdictions, especially criminal ones. However, they may be used for a variety of other purposes, such as investigation of sexual assault or sex trafficking complaints, with the consent of the victims, and probation investigations, among other matters, while prohibited in other respects, such as employment hiring or investigations.

There is, however, a growing trend to allow lie detectors in civil proceedings in a number of states, including North Dakota, Healy v. Healy, 397 N.W.2d 71 (N.D. 1986), even though they have long been inadmissible in criminal proceedings in that state, and others, as well.

But there are a number of defenses known as privilege, some absolute, some qualified, that immunize defamatory statements and those who have made them. The most notable one, applicable to the Ford– Kavanaugh brouhaha, pertains to statements made in judicial proceedings, including legal pleadings and testimony, which generally are impervious to defamation claims. Known as the “litigation” or “judicial” privilege, the doctrine immunizes statements made during litigation, whether civil or criminal, and bars them from being the basis for libel or slander suits. Mathis v. Kennedy, 243 Minn. 219, 67 N.W.2d 413 (1954), and fair and accurate reporting about it falls within the same protective bubble; Nixon v. Dispatch Printing Co., 101 Minn. 309, 112 N.W. 258 (1907). This principle is well accepted across the board, as reflected in the Restatement (2d) of Torts, § 586 (1977).

The rationale of the privilege is to avoid discouraging or deterring litigants, as well as attorneys, law enforcement personnel and other witnesses from engaging in the process for fear of being sued for what they may say in the proceedings. The “judicial” privilege has been extended to a variety of related contexts, including making reports to police and other law enforcement personnel, licensing authorities and other government agencies.

While subject to some exceptions for extremely malicious or bad faith accounts, the privilege also has been extended to legislative bodies, as notably illustrated in a Minnesota case, Moreno v. Crookston Times Printing Co., 510 N.W.2d 321 (Minn. 2000). The state Supreme Court there addressed, as a matter of first impression, the conundrum whether statements made at a city council meting are absolutely privileged from defamation, which arose after a local citizen told members of the Crookston City Council, at a portion of the regularly scheduled meeting, that a police officer in the community was “dealing drugs” from his police car. The local weekly newspaper accurately ran an article quoting the remark and also including statements made by the city police chief in an interview responding to the accusation and rumors that a local police officer had been arrested, which proved unfounded.

Affirming dismissal of the lawsuit by the Polk County District Court, the Supreme Court extended the “judicial” privilege to city council meetings and, by implication, any other legislative bodies. Therefore, the statements by the citizen in the portion of the newspaper report that covered the city council proceedings, including the verbatim quote of the accusation of “drug dealing” was absolutely privileged. However, other statements derived from a post-council meeting interview with the police chief did not fall within the privilege and may be actionable, which warranted a remand for determination of potential liability stemming from a portion of the article not relating to the city council proceedings. The legislative privilege recognized in the Moreno case was based upon “policy considerations” of furnishing unfettered oversight of official events informing the public about government-funded activities.

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Trouble trigger

That privilege principle, well recognized in law and other states and other jurisdictions, would probably bar any lawsuits by Kavanaugh against Ford for her testimony in the Senate Judiciary Committee hearing late last month, as well as the precipitating letter she wrote to the California Senator Dianne Feinstein that triggered the trouble. Likewise, statements made by Ford to the Senate or by another accuser and others to the FBI in its ensuing investigation would be clothed with immunity from suit, too.

A different type of privilege exists for members of the Senate regarding most remarks they made about the matter during the Senate proceedings. The speech or debate clause in Article I, § 6 of the U.S. Constitution bars civil suits against members of Congress for statements made in the performance of their official duties. This provision is emulated in most states, including Minnesota, where it is lodged in Article IV, § 10 of the state Constitution.

But that hardly ends the inquiry. Other libel or slander suits could be forthcoming. The privilege that bars suit against Ford for her statements or versus her and others for making allegations of wrongdoing to law enforcement authorities does not extend to remarks made outside of those settings. Litigants, and in some instances, their lawyers, may be subject to liability for making extra-judicial defamatory accusations outside the purview of court proceedings, such as media interview, even though the gist of those same statements would be immune when made in documents submitted to a tribunal or testimony given in it. In Chafoulis v. Peterson, 668 N.W.2d 642 (Minn. 2003), a case that went up and down the Minnesota judicial ladder, extra judicial statements made by a lawyer involving claims of sexual abuse and harassment were held not covered by the judicial privilege. Although they related to the litigation, they were not intrinsic to it. That principle that has gained some traction in other jurisdictions as well. E.g. Boschetto v. Gibson, 834 A. 2d 1137 (Pa. 2003).

Thus, Kavanaugh could conceivably sue Ford for allegations in an interview with the Washington Post preceding her Senate appearance or other accusers whose remarks are not clothed with privilege outside of the legislative and law enforcement spheres.

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‘Reverse’ rulings

The possibility of “reverse” defamation lawsuit by accusers who have been characterized as lying exists, too.

While Kavanaugh is immune for his Senate testimony, statements made outside the hearing by either him or his supporters could give rise to lawsuits. The justice, for his part, was careful in his non-Senate comments not to explicitly accuse Ford of lying, including during a Fox News television interview that he and his wife, Ashley, participated in just days before the final Senate judiciary joust.

But others were not so circumspect. Trump strongly implied that Ford lied, although he stopped short of expressly challenging her veracity, referring instead before she testified, to a “big fat con job” perpetrated by Senate Democrats, with her complicity. That statement, and others like it, questioning the verisimilitude of Ford and other Kavanaugh accusers could be deemed defamatory because they impugn the veracity of those making the statements.

The president, however, may have legal sanctuary for his pre-Senate remarks. He retreated, after Ford testified, deeming her testimony as “very compelling,” calling her “very credible” and describing her as a “very fine woman,” before denigrating and mocking her at one of his political rallies.

The president got a boost a few days before Ford’s testimony for a similar statement about another one of his tormentors, adult entertainer, Stormy Daniels, when federal Judge James Otero from California indicated that he intended to dismiss her lawsuit brought against the President for claiming her identification of an artists’ caricature of a man who allegedly threatened her for her claim of a sexual dalliance with the president years ago was a “total con job.” As the Ford-Kavanaugh matter was brewing, the California jurist told lawyers for the litigants, including the porn star’s attorney, the ubiquitous Michael Avenatti, (who also happens to represent another one of Kavanaugh’s accusers) that he considers the characterization by the President, the “con job” remark made by the President, to be a “protected communication (of) political hyperbole under the freedom of speech provision of the First Amendment.” Clifford v. Trump, BC 696568 (L.A. County 2018).

But those accusing Ford and others of deceit are hardly assured a safe harbor from suits. Bill Cosby and his legal team, notwithstanding their other legal travails, have faced this dilemma. Accusations by members of his legal squadron, including one of his lawyers, that the accusers of the discredited and now convicted and imprisoned comedian were lying have spurred multiple defamation lawsuits around the country by women claiming that questioning their veracity constitutes defamation.

State, trial and appellate court judges in California earlier this year, allowed one of them to proceed against Cosby and his counsel, contrary to a pair of federal court rulings in the First Circuit in Boston and the Third Circuit in Philadelphia, dismissing defamation claims by his offended accusers. Two of those pending cases were appealed to the U.S. Supreme Court, one by Team Cosby and one by one of his alleged victim/survivors. The eight-members of the court awaiting joinder by Judge Kavanaugh began the first day of their 2018-19 Term by dismissing Cosby’s appeal, Dickenson v. Cosby, 17 Cal. App. 5th 655 (Cal. App. 2018); cert. denied (Oct. 1, high court. McKee v. Cosby, No. 17-1256. While the Cosby appeal has been dismissed, it may re-appear before the high court at some point, while the McKee case or others brought by other of his accusers could be heard by that tribunal, too, at some future date. Some observers view the high court as being equally divided concerning the viability of those “reverse” defamation lawsuits by sexual abuse accusers. The deadlock may have to be broken by the newest member of the tribunal, none other than Kavanaugh himself.

That would be a tale suitable for Shakespeare.

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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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