Last week, on February 16, 2017, the United States District Court for the District of Massachusetts dismissed Katherine McKee’s claims against Bill Cosby in McKee v. Cosby.

McKee was among the women who alleged that Cosby had sexually assaulted her.  In her lawsuit against Cosby, McKee claimed that after she shared her story in an interview with the New York Daily News newspaper (the “Daily News”), Cosby’s attorney wrote a retraction demand letter to the Daily News which contained a series of statements that questioned Ms. McKee’s credibility.  In turn, the Daily News published a description of the letter, as did the Hollywood Reporter, to which the letter had allegedly been leaked.  Based on the statements contained in Cosby’s counsel’s letter, McKee Hill asserted claims for defamation.

Analyzing each of the twenty-four (24) allegedly defamatory statements in great detail, the court found that none of the statements were actionable as a matter of law.

Underscoring the court’s dismissal were several legal First Amendment principles.

First, under the First Amendment, opinions typically cannot give rise to liability because they are not capable of being proved true or false.

Second, even if an opinion could somehow be subject to objective verification, a statement is not actionable as defamation where the speaker communicates the non-defamatory facts on which the opinion is based.  “[W]hen an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader to draw his own conclusions, those statements are generally protected by the First Amendment.”  Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9^th Cir. 1995) (describing other jurisdictions’ agreement on this principle).  Indeed, “[a]n expression of opinion based on disclosed … nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is.”  Piccone v. Bartels, 785 F.3d 766, 774 (1^st Cir. 2015) (quotation omitted).

For example, it would not be defamatory to call someone a “thief” where the speaker explained that the statement was based upon the unusually low price paid by the so-called thief for a house he recently purchased.  The statement would clearly constitute a non-actionable opinion.

By way of another example of a non-actionable statement, this one explained by Justice Brennan: “A writes to B about neighbor C.  ‘He moved in six months ago.  He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio … and with a drink in his hand.  I think he must be an alcoholic.’”  Milkovich v. Lorain Journal Co., 497 U.S. 1, 27 n.3 (1990) (Brennan, J., dissenting) (quoting Restatement (Second) of Torts § 566, cmt. c).

In light of these principles, the court held that Cosby’s attorney’s statements about Ms. McKee lacking credibility were non-actionable as a matter of law.  First, Cosby’s lawyer’s statements about McKee’s credibility were not capable of being objectively verified or disproven.  Second, in any event, the lawyer’s letter disclosed the non-defamatory facts underlying his conclusion, thus immunizing his statements from liability for defamation.

Finally, the court seemed concerned that a defendant has a First Amendment right to deny the allegations against him or her without fear of liability for defamation.  Here, the court said: “Individuals publicly accused of misconduct cannot be held completely incapable of issuing any statement in response to the allegation, other than ‘no comment.’ … [A]n accused person cannot be foreclosed … from … the issuance of a simple and unequivocal denial – free from overall defamatory triggers[.]  In the court’s view, such a situation would be inconsistent with basic First Amendment principles.”

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