Bill Cosby has a tough court battle ahead as he appeals his sexual assault conviction, but that’s not the only legal skirmish keeping his lawyers busy.
According to The Hollywood Reporter, attorneys for the embattled 80-year-old comedian are preparing to petition the Supreme Court to weigh in on the defamation lawsuit launched against Cosby by Janice Dickinson, who is one of dozens of women to allege the former “Cosby Show” star drugged and raped her.
At issue is a statement made by Cosby’s then-lawyer Marty Singer, who blasted Dickinson’s allegations as “fabricated” and “an outrageous defamatory lie.”‘
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Singer’s words are at the crux of Dickinson’s lawsuit, and Cosby’s legal team is taking the position that Singer was simply stating his opinion, not making a statement of fact.
That exact argument has already been shot down by a California appeals court, with the judge in that case writing, “Cosby takes the position that the demand letter is not actionable as it is simply Singer’s opinion, based on fully disclosed facts. We disagree. As we shall explain, nearly every factor of the totality of the circumstances test points strongly toward the conclusion that a reasonable fact finder could conclude the demand letter states or implies a provably false assertion of fact — specifically, that Cosby did not rape Dickinson, and she is lying when she says that he did.”
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Cosby’s lawyers, however, are hoping for a different answer from the Supremes, citing two earlier defamation cases, both involving Cosby.
“The opinion places California First Amendment law in direct conflict with the decisions of two federal courts of appeal,” writes James. “See McKee v. Cosby; Hill v. Cosby. Both the First and the Third Circuits held that denials by the same attorney in response to the same types of allegations against the same client are protected by the First Amendment as non-actionable opinions,” writes Cosby attorney Becky James.
Late Supreme Court Justice William Renquist, notes THR, actually addressed this exact issue in a 1990, writing in his decision for Milkovich v. Lorain Journal Co. that there was no “wholesale defamation exemption for anything that might be labeled ‘opinion,’” adding that “simply couching such statements in terms of opinion does not dispel” the implications made in those statements.
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In the application to the Supreme Court, James is requesting that Renquist’s decision be re-examined.
“In the years since Milkovich was decided, lower courts have struggled with its application, often, as here, reaching conflicting outcomes as to virtually identical statements,” she writes. “Commentators have repeatedly noted the unworkability of the distinctions made in Milkovich between actionable and non-actionable statements of opinion. Nowhere is that unworkability more problematic than in this case, where the uncertainty in the law chills an attorney’s ability to effectively represent an accused client. The Court therefore should intervene to revisit Milkovich and provide clarity as to the scope of First Amendment protection in the increasingly prevalent context of statements made in response to public accusations of misconduct.”
James is asking for 30 days to file a petition to be reviewed by the Supreme Court.