Bill Cosby and his former attorney, Marty Singer, are looking to go to court for the umpteenth time in recent years, petitioning SCOTUS to hear an appeal of a state court lawsuit brought by Janice Dickinson for defamation. Cosby has already lost this suit twice in state court, but he is hoping the third time's a charm.
When Is a Lie Not a Lie
Dickinson wrote a book about her Supermodel days entitled No Lifeguard on Duty, published in 2002. In it, she says Cosby tried to have sex with her, but she fended him off. In 2014, when the Cosby rape allegations started gaining traction, she changed her story, and said that she too had been raped by Cosby, that she wasn't able to fend off his advances, and gave a story substantially similar to the other dozen or so alleged Cosby rape victims. Singer, in an effort to vehemently defend his client, wrote to various media outlets that Dickinson's story was "fabricated and is an outrageous defamatory lie."
And so in a turn of events, Dickinson sued Singer and Cosby for defamation because she claims she was telling the truth, the second time around, and that she isn't a liar. She claims that in her memoir, she had originally written that Cosby had raped her, but that her ghost writer took it out, oddly, in order to sell more copies.
Can You Defend Your Client With Opinion?
Cosby is petitioning the Supreme Court to decide whether statements of opinion can be actionable in a defamation suit. He claims Singer was just doing his job as his attorney, and merely expressing his opinion of Dickinson as a liar, based on information he had from the book and interviews. Cosby contends Singer has a First Amendment right to express this opinion.
So the question becomes if you start a sentence with "In my opinion ..." can you then go on to say whatever you want.
The appellate court in California has already rejected Cosby's assertion that Singer's letter to media outlets merely conveyed opinion rather than provable facts. The court felt that the letter went farther than just stating opinion. As Cosby's attorney, they believed it was implied that Singer knew facts that Cosby had not raped Dickinson.
But Cosby doesn't agree with the appellate court. He claims a person, even an attorney, should be allowed to express their opinion. Cosby contends he is concerned about the tools available to accused people when publicly defending themselves against allegations, and believes that some statements should not be actionable.
Cosby does have a point. When SCOTUS last heard this issue in Milkovich vs. Lorain Journal, Chief Justice Rehnquist said there was no wholesale defamation exemption for anything that might be labeled "opinion." This means that even an opinionated statement can be grounds for a defamation suit, so long as there's a nugget of something provably false. Since the Milkovich trial, lower courts have really had a hard time with Rehnquist's statement, and it probably needs to be tweaked. And this case could prove the perfect nesting ground for the tweaking.
Stay tuned for more episodes of Cosby in Court.