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What It Takes to Allege "Actual Malice" in #TheyLied Libel-by-Accusation-of-Sexual-Assault Claims
Generally, when defendants made factual accusations based on what they said was personal knowledge, it's enough that plaintiff swear the statements are false, so it can be inferred that they are knowingly false. If that happens, it's usually up to the jury to decide who's telling the truth.
The factual allegations from an earlier iteration of the case:
Tallman … lives in the city of Boardman, Oregon, in Morrow County. He owns and operates a coffee shop in Boardman called, "The Farmer's Cup." … Miller … grew up in Boardman. In approximately April 2019, she began working at The Farmer's Cup, as a server. She was 16 years old. Tallman hired Miller and was her supervisor. Shortly after she began working for Tallman, Miller [alleged that she] "experienced what [she] now know[s] to be highly inappropriate behaviors from a 40-year-old man toward a 16-year-old girl." She describes that [alleged] behavior in detail in her declaration.
She adds that "Tallman would only engage in these behaviors when there wasn't another adult present" and that she "did not feel safe working with Tallman." She also witnessed a friend and co-worker experience similar behavior from Tallman. In August 2019, Miller and her friend were at sports practice. They discussed Tallman's behavior and were overheard by their coach, who was a mandatory reporter under Oregon law. The coach reported what he had heard to the Boardman Police Department. Shortly thereafter, Miller, accompanied by her parents, was interviewed by the Boardman Police, who prepared a report. No charges were ever brought against Tallman.
Tallman sued for defamation, and the district court held that, because he had been a candidate for local elected office, he was a public figure. He could thus prevail in his defamation case only if he could show "actual malice" on Miller's part, which is to say knowing or reckless falsehood.
From Magistrate Judge Andrew Hallman's Findings and Recommendation yesterday in Tallman v. Miller (D. Ore.):
Miller made statements of objective fact that she was sexually assaulted by Tallman, which Tallman now asserts were provably false and that Miller knew they were false. Based on this evidence, there are only two plausible inferences that can be drawn from the allegations in the complaint: Miller is lying about the alleged abuse, or she is not. If she is lying, she will have exhibited actual malice, a standard higher than negligence….
Tallman has presented substantial evidence of actual malice. This Court is presented with conflicting evidence as to whether Tallman sexually assaulted Miller. But because this is an anti-SLAPP motion, it is required to adopt the version of events most favorable to Tallman, so long as those facts are supported by substantial evidence.
Here, Tallman has presented substantial evidence that Miller's allegations of sexual assault are "false." This includes specific denials of the instances of sexual misconduct that were alleged in the police report and the Facebook post referred to. Tallman Decl. at ¶¶ 23, 29 (inappropriate sexual comments); ¶ 24 (inappropriate use of ice); ¶ 25, ¶ 27 (touching Miller's breasts and buttocks). It also includes general denials of Miller's allegations that he engaged in "sexual and controlling behaviors" and was a "predator." Accordingly, when the evidence is viewed in the light most favorable to Tallman, he has presented substantial evidence that Miller has falsely accused him of sexual abuse.
Miller does not dispute that there are issues of fact as to whether the accusations are false but instead argues that some other evidence of her mental state is required. This Court agrees with Miller that, apart from the assertion that the allegations were false, Tallman has not presented any evidence that Miller acted with malice when making these allegations. {Tallman declares that the allegations against him were investigated and that he was not charged with any crime…. [But] the fact that an alleged sexual assault was investigated and not charged, without any explanation for why no charges were filed, has no bearing on whether the sexual assault occurred. There are a multitude of reasons as to why law enforcement could decline to bring charges, and this Court cannot infer that the reason no charges were filed was due to a lack of evidence, the credibility of the alleged victim, or any other reason that would bear on the truth of the allegations. Accordingly, Tallman's declaration that no charges were filed has no bearing on whether he has presented substantial evidence of actual malice.}
Thus, the question on remand is whether Tallman's assertion that Miller's statements were false constitutes substantial evidence of actual malice. Because Miller and Tallman were both direct actors in events that either did or did not occur, Tallman's claim of falsity, standing alone, is sufficient to find substantial evidence that she had knowledge of the falsity and therefore acted with actual malice.
This issue was addressed in Chastain v. Hodgdon (D. Kan. 2016), where the plaintiff
alleged that the defendant acted with actual malice because a Facebook post stating that the plaintiff sexually assaulted defendant twenty years prior was false. The Court found that "[i]f defendant knew that the events were false, and nonetheless wrote the detailed narrative describing exactly how plaintiff sexually assaulted or attempted to rape her when it actually never occurred, it is axiomatic that she wrote the narrative with actual malice, or actual knowledge that it was false." Later, upon reconsideration, the Court clarified that in a defamation case where:defendant and plaintiff were the only two direct actors in events that either did or did not occur, plaintiff's claim of falsity supports both that the statement was false and that defendant necessarily knew it was false at the time she said it—because, according to him, it never occurred. Plaintiff's testimony, then, would be used for two purposes: (1) to show falsity, and (2) to show that defendant knew it was false, which is precisely the standard for actual malice.
{Numerous other courts have reached a similar conclusion in defamation cases where the parties are two direct actors in the events that either did or did not occur, and one party alleges falsity. Cf. Christian Rsch. Inst. v. Alnor (Cal. Ct. App. 2007) ("[M]alice may be inferred where, for example, 'a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call.'"); Bookout v. Shelley (Tex. App. 2022) ("[W]here, as here, two parties have dramatically opposed versions of events, a plaintiff's claim of falsity is evidence both that the statement was false and that the defendant necessarily knew it was false at the time he said it because—if the plaintiff's version of events is correct—it never occurred."); Todd v. Lovecruft (N.D. Cal. 2020) ("[I]f [Defendant] is lying, [Defendant] would have to know that their version of events is false because they personally experienced the encounter. That in turn would mean that the Statements were made with malice."); Coomer v. Donald J. Trump for President, Inc. (Colo. App. 2024) (Fabricating an account, "by definition, would show actual malice on the part of the [defendant] because it would mean [defendant] knew his account was false."); L.S.S. v. S.A.P. (Colo. App. 2023) ("[C]ourts … have routinely held that a plaintiff's allegations that the defendant made false accusations are sufficient to create a factual issue as to actual malice."); McDonald v. Wise (10th Cir. 2014) ("[Plaintiff's] factual allegations raise the reasonable inference that [Defendant] did not believe he had sexually harassed her and therefore that she knew she was making a false statement, or at a minimum had reckless disregard for the truth.").}
As Chastain demonstrates, in defamation cases involving allegations of sexual assault, there are limited instances where allegations of falsity, standing alone, are sufficient to demonstrate actual malice. The parties must be direct actors to the alleged sexual assault who therefore know whether the statements are false.
This same rationale does not apply when an individual or media defendant publishes a statement concerning a third party, without any direct knowledge of whether the statement is true. See Ratner v. Kohler (D. Haw. 2018) (distinguishing "defamation case[s] against a publisher or a journalist investigating events about third parties" from cases involving a first- hand account of sexual assault which Defendant allegedly knew did not take place). There also must be a dispute over whether the event itself occurred and not simply a dispute about whether certain sexual conduct amounted to rape or sexual assault. See Chapa (explaining that "'[r]ape' is a legal conclusion, and the Parties may have different impressions of the same experience").
The same [principles] as in Chastain apply with equal force here. It is undisputed that Tallman and Miller were both direct actors in alleged sexual assault and misconduct that either did or did not occur. And Tallman has submitted a declaration that disputes, with particularity, Miller's account of the alleged sexual assault. Because this Court must accept Tallman's version of events as true on an anti-SLAPP motion, this evidence constitutes substantial evidence that Miller knew her version of events was false, which is precisely the standard for actual malice.
Accordingly, this Court finds that Tallman has presented substantial evidence of actual malice….
