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McKee v. Cosby

United States District Court, D. Massachusetts

February 16, 2017

KATHERINE MAE MCKEE, Plaintiff,
v.
WILLIAM H. COSBY, JR., Defendant.

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS (DKT. NO. 41)

          MARK G. MASTROIANNI United States District Judge.

         I. Introduction

         In this action, Katherine Mae McKee (“Plaintiff”) asserts defamation claims against William H. Cosby, Jr. (“Defendant”) for various statements contained in a letter written to the New York Daily News (“Daily News”) in response to the newspaper's publication of Plaintiff's accusation that Defendant sexually assaulted her in the 1970s. The letter, itself detailed in the media, demanded that the Daily News retract the article containing Plaintiff's allegations and faulted that newspaper for failing to consider “[e]asily available public information” purportedly undermining Plaintiff's credibility. (Dkt. No. 30, Am. Compl., Ex. A.) Presently before the court is Defendant's motion to dismiss Plaintiff's amended complaint for failure to state a claim upon which relief can be granted.

         II. Standard of Review

         When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465, 471 (1st Cir. 2012). The burden is on the moving party to demonstrate that even when viewed in the light most favorable to the plaintiff, the complaint lacks “sufficient factual matter” to state an actionable claim for relief that is “‘plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         In evaluating the sufficiency of the factual allegations contained in the complaint, the court must be careful to credit the factual assertions made by the plaintiff while disregarding “legal conclusions, ” such as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. “Determining whether a complaint states a plausible claim for relief” is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. A complaint must survive a motion to dismiss if the facts alleged are sufficient as to each element to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555; see also Lister v. Bank of Am., N.A., 790 F.3d 20, 23 (1st Cir. 2015) (“Dismissal for failure to state a claim is appropriate if the complaint does not set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” (internal quotation marks omitted)).

         III. Background

         The following facts come directly from Plaintiff's amended complaint and the attachment thereto. Plaintiff, who resided in Nevada when she commenced this action, is an accomplished performer and actress and has worked in the entertainment industry for over fifty years. (Dkt. No. 1, Compl. ¶ 1; Am. Compl. ¶ 2.) She currently works as an independent casting director. (Am. Compl. ¶ 3.) Defendant, who resides in Massachusetts, is an internationally well-known celebrity and entertainer. (Id. ¶ 4.)

         Plaintiff first met Defendant around 1964, when she was working as an aspiring actress and “showgirl” in Las Vegas, Nevada. (Id. ¶ 9.) In 1971, Plaintiff appeared as an actress on the “Bill Cosby Show.” (Id. ¶ 10.) Thereafter, Plaintiff believed Defendant was a friend and socialized with him and his wife on various occasions. (Id. ¶ 11.)

         One day in 1974, by coincidence, both Plaintiff and Defendant were in Detroit, Michigan, and Defendant asked Plaintiff to meet him socially. (Id. ¶ 12.) He requested that she bring ribs from a local restaurant to his hotel room, after which he would take her to a party on a friend's boat docked in the Detroit River. (Id. ¶ 13.) When Plaintiff arrived at the hotel room, Defendant, who was wearing a bathrobe and a knit wool cap, invited her in. (Id. ¶ 14.) Immediately after Plaintiff entered the room, Defendant physically attacked her, grabbing the ribs from her hand and tossing them aside. (Id. ¶¶ 15-16.) Defendant “violently and forcefully grabbed [Plaintiff] and spun [her] around so that she was facing away from [Defendant] and toward the door.” (Id. ¶ 18.) Defendant then “violently lifted her dress, ” “pulled down her panties, ” and “proceeded to forcibly rape [Plaintiff] while both were still standing near the door.” (Id. ¶¶ 19, 21.)

         In mid-December of 2014, Nancy Dillon of the Daily News interviewed Plaintiff, who revealed the rape perpetrated by Defendant. (Id. ¶ 23.) On December 22, 2014, the Daily News published a news article written by Dillon describing the rape. (Id. ¶ 24.) That same day, Defendant, through his attorney Martin Singer, wrote a six-page letter to the Daily News addressing the article (“Singer Letter” or “Letter”). (Id. ¶ 36, Ex. A.) In general, the Singer Letter admonished the Daily News for publishing the article despite what Singer claimed were publicly available statements from Plaintiff (and her sister) demonstrating her lack of credibility.[1] (Am. Comp., Ex. A.) The Singer Letter disclosed those alleged statements and provided webpage links to the sources in footnotes. (Id.) The Singer Letter criticized the Daily News's “journalistic standard[s]” in covering Plaintiff's allegations as well as “the media” in general in covering the “stories” of “various [other] women.” (Id. at 2.) Singer accused the Daily News of “publishing a malicious defamatory article” and stated the newspaper “will have only itself to blame if it finds itself in court attempting to defend its ongoing pattern of recklessly and maliciously publishing stories about my client fitting with its predetermined smear agenda.” (Id. at 1, 4.) Notably, Singer stated that Defendant himself “risks being sued for defamation (as has already occurred)[2] if he so much as denies any scurrilous accusations made against him.” (Id. at 4.) Singer demanded “[p]ublication of a retraction and correction of the defamatory Story.” (Id.) The Singer Letter closed by stating: “This letter is a confidential legal communication and is not .”[3] (Id.)

         On December 22, 2014, Singer sent the Letter to the Daily News's head office in New York City via email. (Am. Compl. ¶ 38.) Plaintiff alleges Singer also leaked a copy of the letter to the Hollywood Reporter as well as other media outlets that same day. (Id.) Also on December 22, 2014, various statements from the Singer Letter were published in news stories around the world, including by the Daily Mail website, the Associated Press, and the Spanish-language periodical “Reforma.”[4] (Id. ¶ 47.) The following day, the Daily News published a news article about the Singer Letter wherein it described at least some of the letter's content, as did Hollywood Reporter.com. (Id. ¶¶ 44, 45.)

         Plaintiff alleges the Singer Letter caused harm to her reputation “days, weeks or even months” after it was originally sent to the Daily News, due to the publication of the news articles which reported on its content. (Id. ¶¶ 65, 67.) “Over time, [Plaintiff's] reputation was damaged equally in all fifty . . . states.” (Id. ¶ 67.) Plaintiff resided in the State of Michigan on December 22, 2014, when the Singer Letter was first sent to the Daily News. (Id. ¶ 68.) However, “she was in the process of changing her residence to the State of Nevada” at that time. (Id.) Approximately six months later, in June of 2015, Plaintiff moved her residence to Nevada with the intent to remain there. (Id.)[5]

         Plaintiff, proceeding without the assistance of counsel at the time, commenced this action on December 21, 2015, invoking the court's diversity jurisdiction under 28 U.S.C. § 1332. (Compl.) After the court granted Plaintiff an extension of time for accomplishing service, Defendant filed a motion to dismiss targeting Plaintiff's original complaint on June 10, 2016. (Dkt. Nos. 9, 22.) In response, Plaintiff, after obtaining counsel, filed the operative amended complaint as a matter of course pursuant to Fed.R.Civ.P. 15(a)(1)(B), and Defendant withdrew his original motion to dismiss. (Dkt. Nos. 30, 32.) Defendant filed the pending motion to dismiss targeting Plaintiff's amended complaint on August 16, 2016, Plaintiff (after obtaining two extensions) filed an opposition on October 12, 2016, and Defendant filed a reply brief on October 24, 2016. (Dkt. Nos. 41, 47, 50.) The court held a hearing on November 15, 2016. (Dkt. No. 55.)

         IV. Discussion

         A. Choice of Law

         Before resolving the merits of Defendant's motion to dismiss, the court must determine the substantive law that governs this dispute. Because this is a diversity action, state substantive law applies (subject to certain constitutional protections, as discussed below). Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 427 (1996). Moreover, in deciding which state's substantive law applies, the court follows the choice-of-law rules of the forum state: Massachusetts. In re Volkswagen & Audi Warranty Extension Litig., 692 F.3d 4, 14 (1st Cir. 2012). As this court explained in Green v. Cosby, a separate defamation action brought against Defendant, “Massachusetts courts ‘consider choice-of-law issues by assessing various choice-influencing considerations, . . . including those provided in the Restatement (Second) of Conflict of Laws (1971).'” 138 F.Supp.3d 114, 124 (D. Mass. 2015) (quoting Cosme v. Whitin Mach. Works, Inc., 632 N.E.2d 832, 834 (Mass. 1994)). And “[p]ursuant to section 150 of the Restatement (Second) of Conflict of Laws, ‘the law of the state where the defamed person was domiciled at the time of publication applies if the matter complained of was published in that state.'” Id. (quoting Davidson v. Cao, 211 F.Supp.2d 264, 274 (D. Mass. 2002)). Accordingly, in Green, this court applied the law of the states where each plaintiff “was domiciled when the alleged publication occurred”-namely, California and Florida-because “[t]he statements at issue . . . were published nationally.” Id.

         When the statements in this case were published, Plaintiff was and had been living in Michigan; however, each party tactically advocates for application of another state's law. Defendant emphasizes the conclusory allegations made in Plaintiff's complaint that Michigan “was no longer [Plaintiff's] domiciliary state.” (Am. Compl. ¶ 69.) Defendant argues Nevada law governs because Plaintiff intended to change her residence to that state when the Singer Letter was published and it is where Plaintiff was domiciled when she was harmed by the defamation. As for Plaintiff, she emphasizes her intent to relocate to Nevada but contends Massachusetts law should be applied because it is the state with the most compelling interest in this action.

         Despite Plaintiff's future intention to move, the fact remains that she did not do so until over six months after the Singer Letter was sent to the Daily News and had been reported on both nationally and internationally. (Id. ¶¶ 44-45, 47, 68.) “A person may have only one domicile at a time and, until a new one is acquired, the established one continues.” Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir. 1979); Tuelle v. Flint, 186 N.E. 222, 223 (Mass. 1933). And “to effect a change to one's legal domicil, two things are indispensable: First, residence in a new domicil; and second, the intention to remain there.” Hawes, 598 F.2d at 701 (quoting Sun Printing & Publ'g Assoc. v. Edwards, 194 U.S. 377, 383 (1904)); see Tuelle, 186 N.E. at 223 (“Intention without the concurrence of the fact of residence is not sufficient to change or to create domicil.”). As of December 22, 2014, Plaintiff had not yet changed her residence to Nevada, so her domicile could not have changed. Plaintiff has also filed a declaration explaining that she lived in Michigan from 1994 to July of 2015. (Dkt. No. 47, Ex. Y, Pl.'s Decl. ¶¶ 18, 20.) In addition, Plaintiff asserted that as of December 22, 2014, she was registered to vote, had a driver's license, registered her car, and owned a business in Michigan. (Id. ¶ 25.) See Melénez-Garcia v. Sanchez, 629 F.3d 25, 41 (1st Cir. 2010) (discussing factors for determining domicile, including where the individual is registered to vote, has a driver's license, and operates a business); Caffyn v. Caffyn, 806 N.E.2d 415, 420 (Mass. 2004).

         In addition, Plaintiff has alleged she was harmed within “days, weeks, or even months” of the Singer Letter's publication to the Daily News. (Am. Compl. ¶ 68.) The amended complaint alleges that articles reporting on the content of the Singer Letter were published in “news outlets around the word” beginning on December 22, 2014. (Id. ¶¶ 44-45, 47.) The court therefore infers Plaintiff suffered harm from the alleged defamation while she was domiciled in Michigan.[6] Accordingly, where application of state substantive law is required, this court will apply that of Michigan.

         B. Merits

         1. General Defamation Principles

         “Modern defamation law is a complex mixture of common-law rules and constitutional doctrines.” Pan Am Sys., Inc. v. Atl. Ne. Rails & Ports, Inc., 804 F.3d 59, 64 (1st Cir. 2015). Under Michigan common law,

[t]o prevail on a claim for defamation, a plaintiff must establish the following elements: “(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication [defamation per quod].”

Armstrong v. Shirvell, 596 F. App'x 433, 441 (6th Cir. 2015) (unpublished) (quoting Mitan v. Campbell, 706 N.W.2d 420, 421 (Mich. 2005)). In Michigan, a communication is considered “defamatory” if “it tends to lower an individual's reputation in the community or deters third persons from associating or dealing with that individual.” Id. (quoting Ireland v. Edwards, 584 N.W.2d 632, 636 (Mich. App. Ct. 1998)). Moreover, under the “substantial truth doctrine” recognized in Michigan, “a ‘statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.'” Collins v. Detroit Free Press, Inc., 627 N.W.2d 5, 9 (Mich. App. Ct. 2001) (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991)). In other words, “minor differences are immaterial if the literal truth produces the same effect” as the challenged communication. Koniak v. Heritage Newspapers, Inc., 499 N.W.2d 346, 348 (Mich. App. Ct. 1993); see also Rouch v. Enquirer & News of Battle Creek (After Remand), 487 N.W.2d 205, 215 (Mich. 1992) (“Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified.” (quoting Masson, 501 U.S. at 517)).

         “On the constitutional side, the Supreme Court-reading the First Amendment (made binding on the states through the Fourteenth)-‘has hedged about defamation suits' with lots of ‘safeguards designed to protect a vigorous market in ideas and opinions.'” Pan Am Sys., 804 F.3d at 65 (quoting Desnick v. Am. Broad. Co., 44 F.3d 1345, 1355 (7th Cir. 1995)); see also Gray v. St. Martin's Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000) (“[T]he Supreme Court has read the First Amendment . . . to impose additional limitations on defamation cases, whether or not they are also part of state law.”). One such First Amendment limitation is that “defamatory statements are not punishable unless they are capable of being proved true or false.” Pan Am Sys., 804 F.3d at 65; see also Green, 138 F.Supp.3d at 130. “Because defamation requires a false statement at its core, opinions typically do not give rise to liability since they are not susceptible” to objective verification. Piccone v. Bartels, 785 F.3d 766, 771 (1st Cir. 2015); see also Veilleux v. Nat'l Broad Co., 206 F.3d 92, 108 (1st Cir. 2000) (“[O]nly statements that are ‘provable as false' are actionable; hyperbole and expressions of opinion unprovable as false are constitutionally protected.”). Moreover, the First Circuit has explained that “even a provably false statement is not actionable if ‘it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts.'” Riley v. Harr, 292 F.3d 282, 289 (1st Cir. 2002) (quoting Gray, 221 F.3d at 248).

         “Merely couching a statement as an opinion, however, will not automatically shield the speaker from liability where the statement implies the existence of underlying defamatory facts.” Piccone, 785 F.3d at 771; see Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990). On the other hand, “defamation cannot arise where the speaker communicates the non-defamatory facts that undergird his opinion.” Piccone, 785 F.3d at 771. “Thus, the speaker can immunize his statement from defamation liability by fully disclosing the non-defamatory facts on which his opinion is based.” Id.; see Riley, 292 F.3d at 289 (“[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 free to draw his own conclusions, those statements are generally protected by the First Amendment.” (quoting Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir. 1995)). For First Amendment purposes, therefore, “the relevant question is not whether challenged language may be described as an opinion, but whether it reasonably would be understood to declare or imply provable assertions of fact.” Piccone, 785 F.3d at 771 (quoting Phantom Touring, Inc. v. Affiliated Publ'ns, 953 F.2d 724, 727 (1st Cir. 1992)).[7]

         This question “is of constitutional dimension and, thus, federal law controls.” Pendelton v. City of Haverhill, 156 F.3d 57, 68 (1st Cir. 1998).[8] As such, the court is bound by First Circuit precedent; it “owes no deference to state-court interpretation of the United States Constitution” or the interpretations of other circuit or district courts (but, of course, may consider those sources to the extent they are consistent with First Circuit and Supreme Court precedent). TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1181 (10th Cir. 2007); see Nobles v. Boyd, 2015 WL 2165962, at *9 (E.D. N.C. May 9, 2015) (“Although the court previously has determined California law governs plaintiff's defamation claims, the court's analysis now must also include considerations of federal law, because the requirement that an alleged defamatory statement be of fact, rather than opinion, flows from the First Amendment. . . . Thus, the Fourth Circuit's interpretation of the First Amendment controls.” (citation omitted)). The court notes, however, “the common law of defamation, federal constitutional law, and the constitutional law of the various states reflect many of the same underlying principles, ” and state common or constitutional law may provide even more extensive protections than those afforded by the United States Constitution. TMJ Implants, Inc., 498 F.3d at 1181-82 (discussing the difficulty of determining whether the source of a limitation on defamation claims in state-court decisions derives from state or federal law).[9] Here, the court need not consider whether Michigan constitutional or common law is more protective of “opinions” than the United States Constitution because Defendant has not made that argument and because the court concludes the relevant statements are protected by the First Amendment. See Phantom Touring, 953 F.2d at 727 n.4.

         2. Application of General Defamation Principles to the Singer Letter as a Whole

         Read as a whole, the “gist” or “sting” of the Singer Letter is: Plaintiff lacks credibility, and thus is an unreliable news source, and the Daily News either failed to investigate or ignored certain publicly available information purportedly undermining Plaintiff's claim. The Singer Letter, therefore, contains both opinionated statements regarding Plaintiff's credibility and the facts on which those opinions are based. The court analyzes the two sets of statements separately, asking: (1) under the First Amendment, whether the “opinions” are capable of being proven true or false or imply undisclosed defamatory facts; and (2) under state law, whether the facts provided are false and defamatory. See Milkovich, 497 U.S. at 18-19; see also TMJ Implants, 498 F.3d at 1185 (“[A]lthough an opinion based on disclosed defamatory facts is not itself subject to liability, the disclosure of the defamatory facts on which the opinion rests may still create liability if the facts themselves are false; it is the publication of the defamatory facts, however, rather than the expression of opinion, that is actionable.” (citing Restatement (Second) of Torts § 566 cmts. b, c & illus. 5 (1977), and concluding that Milkovich, 497 U.S. at 18-19, stands for the same proposition)).

         As discussed below, the court concludes the opinions as to Plaintiff's credibility are not capable of being objectively verified or disproven. The court also concludes the Singer Letter adequately disclosed the non-defamatory facts underlying the opinions so as to “immunize his [opinions] from defamation liability.” Piccone, 785 F.3d at 771. Of particular importance is the breadth of the Singer Letter, which is six pages long and heavily footnoted with citations to articles and other sources supporting the author's view. See Phantom Touring, 953 F.2d at 730. The Singer Letter ostensibly recites all the facts supporting the opinions[10] and provides no indication that the opinions are based upon undisclosed objective facts. See Piccone, 785 F.3d at 772-73 (“Defendant explained the circumstances of the encounter, thus providing [the listener] with the factual basis underlying his opinion of Plaintiff's conduct.” (citing Restatement (Second) of Torts § 566 cmt. b (1977)); Milkovich, 497 U.S. at 27 n. 3 (Brennan, J., dissenting) (“[C]lear disclosure of a comment's factual predicate precludes a finding that the comment implies other defamatory facts . . . .”).

         In this way, the Singer Letter is similar to the statements at issue in Piccone. There, the plaintiffs-one of whom was seeking temporary custody of her brother's children after the parents fled the state-had a “tense exchange” with a town police chief regarding preparations for taking the children into the sister's care. Piccone, 785 F.3d at 768. Following the encounter, the police chief called the plaintiffs' employer[11] to complain about their unprofessional behavior and stated he believed the plaintiffs knew the whereabouts of the missing parents. Id. at 768-70. In doing so, he provided the employer details regarding the encounter and the investigation into the missing family. Id. The First Circuit explained that “[w]hether or not a particular person's behavior may be characterized as ‘professional' or exhibiting ‘professional courtesy' will often be a quintessential ‘expression[] of personal judgment' which is ‘subjective in character, '” and therefore cannot be objectively verified. Id. at 772 (quoting Gray, 221 F.3d at 248). In addition, the defendant's disclosure of “the non-defamatory facts about the confrontation . . . allowed [the listener] to form his own impression” of the plaintiffs' professionalism. Id. at 773. As for the statement regarding the plaintiffs' possible knowledge of the missing family's whereabouts, the First Circuit explained that assertion “‘seems sufficiently factual to be proved true or false, ' . . . and thus could, under certain circumstances, give rise to defamation liability.” Id. (quoting Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 131 (1st Cir. 1997)). However, the First Circuit again concluded the defendant's disclosure of the non-defamatory facts underlying his belief protected him from defamation liability. Id. at 773-74.

         This court reached the opposite conclusion in Green, 138 F.Supp.3d 114. Unlike the Singer Letter in this case and the statements in Piccone, the three statements substantively addressed in Green[12] do imply undisclosed defamatory facts. For example, the “Newsweek Statement”-“This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing”- could be understood to imply the false and defamatory assertion “that there was some unidentified investigation or hearing into the allegations which officially determined [the plaintiff's] accusation was false.” Id. at 121, 133. The “November 20, 2014 Statement, ” which responded to an allegation that Defendant offered the plaintiff pills from a briefcase before assaulting her, stated in relevant part: “Ms. Traitz is the latest example of people coming out of the woodwork with fabricated or unsubstantiated stories about my client. . . . There was no briefcase of drugs, and this is an absurd fabrication.” Id. at 121-22. That statement could be read to imply (or state) that the plaintiff “intentionally made absurdly false sexual assault allegations against Defendant.” Id. at 135. The “November 21, 2014 Statement” provided in relevant part:

The new, never-before-heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago have escalated far past the point of absurdity. . . . Over and over again, we have refuted these new unsubstantiated stories with documentary evidence, only to have a new uncorroborated story crop up out of the woodwork.

Id. at 122. Similar to the Newsweek Statement, the reference to “documentary evidence, ” without explanation, could be read to imply the existence of undisclosed evidence clearing Defendant of misconduct.[13] Critically, the court believed a fact-finder could conclude the statements did not fully disclose the non-defamatory factual bases underlying the opinions expressed. In this way, these statements differed from the Singer Letter here and the statements in Piccone, both of which detailed extensive underlying facts.

         Granted, the Singer Letter, unlike the articles at issue in Phantom Touring, 953 F.2d at 730, does not include “information from which readers might draw contrary conclusions, ” i.e., information unfavorable to Defendant's position. However, the December 22, 2014 Daily News article obviously did include such contrary information, namely, Plaintiff's allegation that Defendant raped her. Therefore, an objective reader, considering both sources, would have had both sides of the “verbal debate, ” id., “leaving the reader free to draw his own conclusions, ” Riley, 292 F.3d at 289 (quoting Partington, 56 F.3d at 1157). See also Piccone, 785 F.3d at 774 (noting that although the defendant's statements “present[ed] a somewhat skewed view of his interaction with” the plaintiffs and the defendant “may well have been acting with a vindictive motive, ” “‘[a]n expression of opinion based on disclosed or assumed 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'” (quoting Yohe v. Nugent, 321 F.3d 35, 42 (1st Cir. 2003))).

         The court also recognizes the facts here are different from some defamation cases, because Defendant (on whose behalf Singer wrote the letter) is not an objective, third-party observer; rather, he presumably has personal knowledge as to the truth or falsity of Plaintiff's allegations. Nevertheless, as Plaintiff's counsel pointed out at the hearing, the Singer Letter does not actually deny that an incident in the Detroit hotel room occurred. (Dkt. No. 56, Tr. of Mot. Hr'g Nov. 15, 2016, at 34 (“[N]owhere does he deny-Mr. Cosby or Mr. Singer-deny the rape. They don't say the rape never happened. I didn't do it. I didn't have sex with that woman. There's no such statement.”).) Instead, it merely raises doubts as to Plaintiff's credibility and castigates the Daily News for failing to include or consider information allegedly relevant to that issue, discoverable through “a simple Google search.”[14] (Am. Compl., Ex. A at 1.) In the court's view, there is a subtle, yet fundamental, difference between stating or implying that an accuser's allegations are completely fabricated (and failing to fully disclose the non-defamatory facts underlying this assertion), as in Green, and disputing an accuser's credibility based on fully disclosed non-defamatory facts, as here.

         Perhaps an argument can be made that the Singer Letter (or any other statement made by or on behalf of Defendant about the various sexual assault accusations) could constitute defamation because it necessarily implies the allegations are false simply due to Defendant's personal knowledge of the incident. The court, however, rejects this contention. At bottom, any implication supporting a defamation claim must derive primarily from the specific language used (or the “gist” derived from that language), not merely the known or speculative circumstances surrounding a given statement. See Curtis Publ'g Co. v. Butts, 388 U.S. 130, 152 (1967) (“[L]ibel remains premised on the content of speech . . . .”); Levinsky's, 127 F.3d at 131 (explaining that a “court must evaluate a speaker's statement as it was given”); Phantom Touring, 953 F.2d at 729 (looking to “[t]he sum effect of the format, tone and entire content of the articles”). Individuals publicly accused of misconduct cannot be held completely incapable of issuing any statement in response to the allegation, other than “no comment.” They cannot be entirely chilled from navigating, at their own peril, what may be viewed as a web of defamation law to produce a responsive statement that does not subject themselves to liability.[15] Alternatively, an accused person cannot be foreclosed, during their responsive navigation, from considering the issuance of a simple and unequivocal denial-free from overall defamatory triggers or contextual themes.[16] In the court's view, such a situation would be inconsistent with basic First Amendment principles. Cf. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986) (“[S]uch a ‘chilling' effect would be antithetical to the First Amendment's protection of true speech on matters of public concern . . . .”). Of course, if the statement is true and does not imply other false and defamatory facts, it cannot give rise to a defamation claim. See Pan Am Sys., 804 F.3d at 65 (“Because truth can set a defendant free, so to speak, it follows that defamatory statements are not punishable unless they are capable of being proved true or false.”); Piccone, 785 F.3d at 771 (“[D]efamation requires a false statement at its core . . . .”); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974) (“The legitimate state interest underlying the law of libel is the compensation of individuals for harm inflicted on them by defamatory falsehood.” (emphasis added)).

         Having framed the relevant defamation principles and considered the Singer Letter as a whole, the court will now address the twenty-four statements in the Singer Letter Plaintiff challenges as defamatory (each constituting a separate count). In doing so, the court addresses the statements in separate groups for organizational purposes.

         3. Counts 3, 11, 12, 17, 18, 20, 21, 22, 23, and 24

         Plaintiff alleges the following statements in the Singer Letter, each specifically declaring that her allegations lack credibility, are defamatory:

• The Daily News could have done a simple Google search to learn that her story lacks credibility. (Am. Compl. ¶ 89, Ex. A at 1.)
• Ms. McKee's never-before-heard tale about something she claims happened back in the 1970's is completely contradicted by her own prior published statements. Ms. McKee's own statements and conduct confirming that she considers Mr. Cosby a wonderful, lovely person who treated her well, and lauding about her association with Mr. Cosby, can easily be found with just a few clicks on Google. (Id. ¶ 137, Ex. A at 2.)
• Instead, a mountain of evidence undermining your source's reliability was ignored by the Daily News in its malicious quest to publish a salacious defamatory “scoop.” (Id. ¶ 141, Ex. A at 2.)
• To say that Ms. McKee is not a reliable source is a gross understatement. (Id. ¶ 163, Ex. A at 3.)
• Ample published information readily available to the Daily News completely undermines this story. (Id. ¶ 166, Ex. A at 3.)
• If someone was treated improperly, was assaulted, or was even raped, it is inconceivable that they would make these laudatory, positive statements about the alleged perpetrator. Why would someone who was allegedly raped “like” a comedy video by their alleged attacker? Why would someone who claims to have been assaulted have as their top Google post an episode of a television series acting along side her purported attacker? Why would she list her appearance on his show at the top of her list of professional accomplishments? It defies credulity. (Id. ¶ 175, Ex. A at 3.)
• The glaring inconsistency between Ms. McKee's past affectionate public sentiments about my client and what she is now claiming was alone a basis to question her veracity and render her an unreliable source. (Id. ¶ 184, Ex. A at 3.)
• Moreover, Ms. McKee's own description of her private words and conduct at the time of the alleged incident also contradicts the Daily News' Story. (Id. ¶ 189, Ex. A at 3-4 (emphasis in original).)
• When you add to the mix Ms. McKee's constant name-dropping of her association with Mr. Cosby, and her “liking” of a comedy Cosby video a year ago and reaching out to get in touch with an old friend, and her recent proud post of a video clip showing her acting alongside Mr. Cosby in the 1970's, the enormous disparity between the Daily News Story and her public words and conduct establish that the Story was published recklessly and with Constitutional malice. (Id. ¶ 196, Ex. A at 4.)
• The media blindly ignores the dubious background of sources, ignores the absence of evidence to corroborate decades-old accusations, and ignores the existence of contradictory evidence undermining its sources' claims or reliability. (Id. ¶ 202, Ex. A at 4.)

         The court concludes the First Amendment precludes these statements from giving rise to defamation liability.[17] “The sum effect of the format, tone and entire content of the [Singer Letter] is to make it unmistakably clear that [Singer] was expressing a point of view only” based on the information he was referencing. Phantom Touring, 953 F.2d at 729.

         The judgment of an individual's credibility is not an objective fact capable of being proven true or false. See Piccone, 785 F.3d at 772 (“Where an expressive phrase, though pejorative and unflattering, cannot be ‘objectively verified, ' it ‘belongs squarely in the category of protected opinion.'” (quoting Levinsky's, 127 F.3d at 130)); see also Turkish Coalition of Am. v. Bruininks, 678 F.3d 617, 625 (8th Cir. 2012) (“Such an evaluation of credibility is essentially an opinion, ‘not capable of being proven true or false, ' and thus not actionable in defamation . . . .”). Like the “unprofessional” statements in Piccone, whether an individual's words or actions support a characterization that the person “lacks credibility” or is an “unreliable source” is “a quintessential ‘expression[] of personal judgment' which is ‘subjective in nature.'” Piccone, 785 F.3d at 772 (quoting Gray, 221 F.3d at 248). The same is true as to the assertions that: Plaintiff's allegations are “completely contradicted” and “undermine[d]” “by her own prior published statements, ” “it is inconceivable” that the statements would be made by an assault victim, there is a “glaring inconsistency” and “enormous disparity” between the statements and Plaintiff's allegations, and Plaintiff's own description of the incident “contradicts” the article. The court “can imagine no objective evidence that might conclusively prove or disprove” these assertions. Levinsky's, 127 F.3d at 130. They are merely subjective opinions based upon disclosed information, and “[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz, 418 U.S. at 339-40. So long as the author fully outlines the non-defamatory facts supporting those opinions and does not imply the assertion of an undisclosed defamatory fact, such statements are not actionable. See Piccone, 785 F.3d at 771. That is the situation here. As discussed, unlike in Green, Singer adequately “communicate[d] the non-defamatory facts that undergird his opinion.” Id.

         In the end, the subjective statements regarding Plaintiff's credibility constitute opinions, and the Singer Letter discloses the factual bases underlying those opinions without implying additional defamatory facts. As a result, the statements are protected by the First Amendment and are not actionable.

         4. Counts 1, ...


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