If I Come Out As #Metoo, Could I Get Sued?

Posted in Civil Rights, Civil rights in the workplace, Employee Rights on December 1, 2017

The reports of Harvey Weinstein’s sexual misconduct set off a cascade of sexual harassment and assault allegations against well-known men in politics, the arts, academia, and Hollywood.  Women posted their personal accounts of #metoo on social media.  Spurred by solidarity and accountability, women who long remained silent about harassment and abuse they experienced stepped forward to state publicly what they suffered, to corroborate the accounts told by others, and to simply offer support.

The concerns that prompted many women to remain silent for years – the attacks on their character and truthfulness, the questions about their motives, the impact on their careers, and the emotional impact of recounting events that range from embarrassing to terrifying – may have lessened over the years, but they have far from disappeared despite the sense of support provided by this movement.  For many of these women, however, a more practical and direct concern may top the list:  What legal risks do I face in coming forward with my story?  What if the accused retaliates?  What if he sues me?

Public allegations of sexual harassment and assault can lead to reflexive threats by the accused that they will file a defamation lawsuit.  But these threats generally seem to go no further than threats.  For good reason.  Accusing a woman who reveals misconduct of defamation requires little more than words and someone to listen.  Proving a claim for defamation requires far more.

What is defamation?

As in most states, under California law a defamation claim involves the publication (spoken or written and heard or read by someone) of a false statement, that qualifies as defamatory (has a natural tendency to injure or harm one’s reputation, or that causes actual damage), and for which no privilege (a protection created by law) applies.  An allegation that someone sexually harassed or assaulted someone would almost certainly support a claim, if false.

What are the defenses to defamation?

Truth is an absolute defense to a defamation claim. The person alleging defamation (the “plaintiff”) must show that the statement made against him is false. If he cannot do so, his defamation claim fails.

Additionally, some types of published statements may also be “privileged,” which raises the bar for showing that the statement was defamatory.  See California Civil Code § 47.  If the published statement is privileged, the plaintiff will have to show that the person who made the statement (the “defendant”) did so with actual malice in order to succeed on their defamation claim.

Actual malice means that “the publication [of the defamatory statement by the defendant] was motivated by hatred or ill will towards the plaintiff” or that the defendant “lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.” Taus v. Loftus (2007) 40 Cal.4th 683, 721. This can be a difficult standard for a plaintiff to meet.

What if the person accused is a public figure?

Malice is also required for a plaintiff to succeed in a defamation claim where the defendant shows that the plaintiff is a public figure or limited public figure. So if the accused harasser is a public figure, it is actually harder for them to prove their defamation claim.

An all-purpose public figure is a “public figure who has ‘achiev[ed] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” McGarry v. Univ. of San Diego (2007) 154 Cal. App. 4th 97, 113. Well-known media figures, politicians, actors, and executives would likely be considered all-purpose public figures.

By contrast, a limited public figure generally involves a private person who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” McGarry,154 Cal. App. 4th at 113.  The limited purpose public figure “loses certain protection for his [or her] reputation only to the extent that the allegedly defamatory communication relates to his [or her] role in a public controversy.” Id. For example, collegiate athletes and coaches have frequently been determined to be limited-purpose public figures as to their performance and work as athletes and coaches.

What can women do if they are threatened with a defamation lawsuit?

While those accused of sexual harassment and assault may threaten defamation claims, few actually file.  Even a person allegedly defamed who feels confident in his or her ability to prove falsity may quickly recognize that the evidence offered in defense – i.e., evidence proving the truth of the statement at issue – may do far more damage than the allegedly defamatory statement that prompted the lawsuit.

As for those plaintiffs financially able to pursue even a weak claim and to potentially outgun the defendant with well-paid counsel, California law provides the defendant a potentially potent weapon with which to dismiss the case at the outset: the Anti-SLAPP motion.

“Anti-SLAPP” stands for strategic lawsuit against public participation. The California legislature passed anti-SLAPP laws to address the “disturbing increase in lawsuits” meant to chill free speech and the petition for the redress of grievances. Cal Code Civ Proc § 425.16(a).  The California government wanted to encourage participation in matters of public significance and to address instances where participation was chilled through the abuse of the judicial process.  Id.  Anti-SLAPP motions allow defendants to boot meritless lawsuits before they advance far.

In an anti-SLAPP motion, the defendant must make a threshold showing that her actions were taken in furtherance of her “right of petition or free speech under the United States or California Constitution in connection with a public issue.”  Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 733.  If the defendant succeeds in this first step, the burden shifts to the plaintiff to demonstrate that there is the reasonable probability that he will prevail on the merits at trial. Id.

As the daily headlines make clear, we may have seen only the beginning of the #metoo movement.  While some of those women who step forward may receive an apology or widespread support in response, it seems certain that others will instead receive a threat of litigation.  Given the protections (still) afforded speech in this country and the difficulty of prevailing on a defamation claim, perhaps most of those threats will never transform into a full-blown lawsuit.