"An appeal gets us more publicity."
Today in a 30-page decision by New York State Supreme Court Justice Brian DeJoseph, the defamation lawsuit filed by Bobby Davis and Mike Lang against Jim Boeheim and Syracuse University was dismissed. The decision followed oral arguments two weeks ago, as well as written submissions by each side citing to relevant case law and how it applies to the facts of this case. I took the time out of my busy Friday afternoon schedule to read through the entire ruling, and so here are my thoughts.
DeJoseph got it right. We've made no secret here at Orange::44 that we believed the suit would be dismissed. We believed that the defense motion hit the nail on the head, cited to some very compelling case law, and would stop this case in its tracks. Good thing we were right; I didn't feel like printing a retraction.
For those of you brave enough to sift through the 30-pages of legalese, let me try to give you the Cliff's Notes, everyday version (though, to be honest, I think it's a pretty easy, common sense read). DeJoseph begins by recounting the background of the case: the November 17 breaking news of the allegations, the reactions by the University and Boeheim, the filing of the lawsuit, and the specific statements alleged to be defamatory. The decision then launches into a lengthy discussion of the law and how it applies to these facts.
The discussion is the meat and potatoes of this decision. DeJoseph begins by describing the standard he must apply: "On a motion to dismiss for failure to state a cause of action, the Court is obligated to accept the material allegations as true and the Complaint is deemed to allege whatever can be fairly and reasonably implied. If upon reasonable view of the stated facts, Plaintiff would be entitled to recover for defamation, the cause of action must be upheld." In other words, for purposes of the motion, the Court assumes the allegations are true and, under that assumption, must apply those allegations to relevant law to determine if the facts meet the elements of the defamation cause of action. Or, more succinctly, "is this defamation?" After a review of the evolution of the law of defamation, DeJoseph then gets a little more specific: "In making this determination the Court must determine whether the reasonable reader could have believed that the challenged statements were conveying facts about the plaintiff," and that "New York's approach requires an analysis of the full context of the challenged speech whereas the federal approach requires a determination as to whether the precise words express or imply a provably false fact."
This New York approach provides more protection to the speech, recognizing the context in which words are spoken/printed give those words their intended meaning. Therefore, DeJoseph determined that "the threshold issue...is whether the alleged defamatory statements constitute expressions of opinion which are not actionable or assertions of fact which may form the basis of a viable claim." Further, "the dispositive inquiry...is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff." To that end, the factors the Court must use are: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion and not fact.
Much attention is then given to the context of Boeheim's statements. First, DeJoseph writes, "the broader context of the Penn State scandal is highly relevant here as Defendant Boeheim was naturally placed in a defensive posture, attempting to defend himself and co-defendant Syracuse University from being compared to the allegations waged against Penn State, then Penn State head coach Joe Paterno, and former Penn State assistant football coach Jerry Sandusky." Boeheim is not a "disinterested observer," as the Plaintiffs argue, but rather was defending himself on an accusation that he personally witnessed Davis in Bernie Fine's hotel room; and also personally vouching for someone he has known personally and professionally for over 45 years. "Boeheim's statements appear to be a 'product of passionate advocacy' as opposed to 'careful, logically developed reason'" (i.e. Boeheim spouting out at the mouth). "The reasonable reader," DeJoseph writes, "would conclude that Boeheim was providing a biased and personal opinion on the accusations against Bernie Fine, not fact."
Second, on the context argument, DeJoseph reasons that the reading of the full text of the statements (the entire interview or the entire newspaper article) "clearly puts the reasonable reader on notice that Boeheim is boldly asserting his loyalty to a longtime colleague, and is frustrated by what he believes to be yet another opportunity for the Plaintiffs to accuse Bernie Fine of sexual abuse." It would not be sufficient, for purposes of determining whether the statements are defamatory, to simply parse the words you want out of a larger context and give them the meaning you want; rather, the words must be given the meaning within the context published.
Justice DeJoseph then has a long discussion of the word "liar" and when he believes its use becomes actionable defamation. This is a distinction I believe was not really mentioned much before now, outside of the legal filings and the arguments in court. The main idea here is that to call someone a liar, in and of itself, is not actionable; rather, the assertion that someone is a liar must also be accompanied by specific allegations of criminal conduct of the Plaintiff. DeJoseph finds that Boeheim's statements "do not include any specific allegations of criminal conduct" by Davis or Lang; that "Boeheim never uttered the words 'extortion' or 'blackmail' or any specific criminal act" when he said this was all about money. To be sure, the context of Boeheim's statetments -- in the immediate aftermath of the Penn State scandal -- and the staleness of the allegations of Davis, clearly indicate that Boeheim was asserting his opinion. Boeheim never stated he knew of any plan or scheme for Davis or Lang to get money; it was rather just his conclusion based on the context of how the story was evolving: "A full and thorough review of the statetments made by Boeheim and the articles in which they were published clearly show that Boeheim never claimed knowledge of any demand for money, but, again, Boeheim simply surmised, with the use of generalized speculation and suspicion that Plaintiffs' claims were possibly financially motivated."
Dismissing one of the last arguments in Allred's bag of tricks, DeJoseph argues against the assertion that Boeheim's statements implied that he knew facts that his audience -- or the general public -- did not know. Here, the allegation was that Boeheim had "unique access" to SU's 2005 investigation and internal report. Initially, DeJoseph notes that Plaintiffs failed to even allege this in its complaint. But more importantly, DeJoseph debunks the argument that we didn't know of this investigation: ESPN reported it when the story broke on November 17. So, you know, thanks, Mark Schwarz. DeJoseph reasons that "The ESPN story is relevant on this issue because it shows that Boeheim was speaking on an even playing field with his audience," that "when Boeheim commented on those facts, and used those facts to form the basis for his opinion, he was not drawing from any unknowns or any secrets, unique only to him."
This is important.
DeJoseph seems to believe that this is a vital piece of information. That Boeheim did not have unique facts, unknown to the public, to serve as the basis for his opinion, makes his opinion unactionable in a defamation suit. This is a holding from the recent Fourth Department case of Gisel v. Clear Channel Communications, Inc. This was a defamation case dismissed, and decided by the appeals court that would hear any appeal of this Boeheim suit. So for DeJoseph to cite directly to this case is him telling the appeals court that this case is similar to that one, and that the appeals court should come to the same conclusion that he did: that this is not defamation.
DeJoseph also seems to take the Allred legal team to task for its exaggeration of the situation and its claim that Boeheim was withholding information he knew about SU's investigation. I enjoy this gem: "The Plaintiffs seem to ignore that Boeheim is the head coach of the Syracuse University basketball team. He is not the District Attorney, not a private investigator, and not a police officer."
Finally, on page 30, DeJoseph gives his conclusion: "The content, tone, and purpose of Boeheim's statements would clearly signal to the reasonable reader, that what was being read in the articles published in the days after the initial ESPN report were likely to be an opinion - a biased, passionate, and defensive point of view of a basketball coach - rather than objective fact. Thus, Plaintiffs' defamation claim against Boeheim fails as a matter of law." Since the claim against SU was based on the same statements, the suit against SU was also dismissed.
While Syracuse University declined comment other than to state it was pleased by the ruling, Gloria Allred went on her usual over-the-top tirade. In an email to the Post-Standard, Allred said the following: "When Bobby Davis came forward years ago and complained about sexual abuse, he was ignored. When the allegations were made public he was attacked. It is difficult enough for victims of childhood sexual abuse to come forward. This decision sends the message that you can attack the alleged victim and call him a liar with impunity. It makes it even harder for victims to come forward."
Allred just doesn't get it. She thinks that by this suit being dismissed, it makes it OK for an accuser to be called a liar. That some blanket policy was just announced that gives victims no recourse. She, of course, worries about the chilling effect that such language could have on a potential victim to come forward; but, of course, she ignores the context. For his part, Jim Boeheim apologized for what he said, and acknowledged that his intent was not to discourage victims to come forward; rather, he was commenting specifically on a case that hit home to him, a case that he thought was cold and unfounded.
Gloria Allred should give credit to Jim Boeheim for his apology, and for his work and contributions in protecting children and helping the victims of abuse. But that all seems to be lost on her. That doesn't keep her in the headlines. On that note, the caption to the picture above is not a quote from Allred. I am not saying that she said that; she certainly did not say that publicly. But, it's my opinion that she thought it!
An appeal is evidently on the way. By law, Davis and Lang have 30 days (well, probably 35 days) within which to file a Notice of Appeal with the Onondaga Supreme Court. The notice is simply a one-page statement stating they intend to appeal. The appeals court -- The Fourth Department of the Appellate Division, based in Rochester -- will then set the timetable for submission of briefs or other arguments, and set oral argument, if necessary. Appeals can take a year or two.
So, don't expect an end to this anytime soon. But it's my opinion that, just as the defense motion to dismiss was on solid legal ground, that Justice DeJoseph's decision is also on solid legal ground. Especially with its citation to the appeals court's recent defamation decision. Good luck, Allred. You should just give up and go home.