Trump accuser follows Cosby playbook by pursuing defamation suit

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By Joseph Ax | NEW YORK

NEW YORK When former reality television
contestant Summer Zervos accused Donald Trump of sexual
misconduct last fall, she pursued her claims solely in the court
of public opinion, since the allegations dated too far back to
allow a lawsuit.

But last month, she found a fresh approach to fight the
former host of “The Apprentice,” who has vehemently denied her
allegations that he groped her in 2007. By professing his
innocence, the man who is now president of the United States had
effectively called her a liar, Servos alleges in a defamation
lawsuit.

The suit copied a rare legal tactic employed most notably by
several women who have accused the actor and comedian Bill Cosby
of sexual assault: using his denials as the basis for a
defamation claim.

It is not uncommon for high-profile allegations against
celebrities to prompt defamation lawsuits, but they are usually
filed by the star against the accuser.

In 2014, however, Joseph Cammarata, the attorney for Cosby
accuser Tamara Green, realized he could adapt that strategy for
his own purposes after Cosby’s lawyer issued a statement calling
the allegations “fantastical.”

Like many other Cosby accusers, Green was unable to sue for
assault because the alleged incident occurred decades ago.

“A direct claim for the assault is not available, so I came
up with the idea that a defamation claim would be the
appropriate vehicle to use to address the underlying harm,” said
Cammarata, whose lawsuit now includes seven Cosby accusers as
plaintiffs. All told, 10 Cosby accusers filed four defamation
lawsuits in three states.

In simple terms, the argument is that Trump and Cosby have
effectively branded the women as liars by denying the incidents
occurred. But the women face a difficult challenge in making
their cases, experts say.

“Merely saying, ‘I didn’t do it,’ is traditionally not seen
in defamation law as calling your accuser a liar, even though
logically that’s what it means,” said Rod Smolla, dean of the
Delaware Law School and a First Amendment scholar.

“But if you go beyond that – if you go from, ‘I didn’t do
it,’ to, ‘She’s a liar,’ now you have arguably made a statement
of fact” that could be subject to liability, he added.

Trump’s status as president does not shield him from civil
liability for actions he took prior to assuming office.

In a statement on Tuesday, the attorney defending Trump in
the Zervos lawsuit, Marc Kasowitz, said he and Trump’s personal
lawyer would soon file a response to the lawsuit.

“President Trump continues to deny any allegation of
wrongdoing raised in said complaint,” he said.

Cosby, 79, who faces allegations of sexual misconduct from
approximately 50 women, has also denied any wrongdoing.

BURDEN OF PROOF

The Cosby and Trump plaintiffs are taking on a tough double
burden, experts said.

First, the only way to show the denials by both men are
untrue is to prove the incidents took place as described.

“The burden is going to be on her to show that Trump is
actually saying something that’s false,” Clay Calvert, a First
Amendment expert at the University of Florida, said of Zervos.

In addition, the women must show Trump and Crosby crossed
the line into defamation by deliberately making false statements
that seriously harmed the accusers’ reputations.

In defamation cases, courts typically examine statements to
determine whether they were factual or opinion, as expressing an
opinion is generally protected by the First Amendment.

Making that distinction can be challenging. In the Cosby
cases, for instance, judges have split on whether the lawsuits
should proceed, even coming to opposite conclusions regarding
the same statement from his attorney.

U.S. District Judge Mark Mastroianni in Massachusetts
rejected Cosby’s attempts to have two cases, including Green’s
lawsuit, thrown out. In his rulings, the judge found that a
November 2014 statement from Cosby’s lawyer calling the
allegations “unsubstantiated, fantastical stories” could be
reasonably seen as factual, and therefore potentially
defamatory.

By contrast, a Pittsburgh federal judge, Arthur Schwab,
tossed a similar case against Cosby, finding that the same
statement was “pure opinion” and thus protected.

Unlike Cosby, who has been fairly circumspect in his public
statements, Trump has aggressively attacked his accusers,
calling the claims “100 percent fabricated and made-up.” His
rhetoric could make him more vulnerable to a defamation claim,
experts said.

Trump has said he never met Zervos at a hotel, despite her
allegation that he groped her at a hotel in Beverly Hills,
California.

That type of specific fact-based assertion can also make it
easier to show defamation if it can be proven false, according
to Eugene Volokh, a law professor at the University of
California in Los Angeles.

“So much depends on the particular statement and the
particular context surrounding that statement,” he said.



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