The Volokh Conspiracy
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N.Y. Decision on Showing Required for #TheyLied Defamation Claims Based on Allegations of Sexual Assault
In Friday's decision in Vitagliano v. Weiner, by N.Y. appellate judges Gerald Whalen, John Curran, Donald Greenwood, and Lynn Keane, Vitagliano sued alleging that Weiner had sexually assaulted her; Weiner counterclaimed "for defamation premised on a social media 'story' posted by [Vitagliano] in which she asserted that defendant 'is a rapist.'" Vitagliano tried to get Weiner's counterclaim dismissed early, under New York's anti-SLAPP statute, which is designed to quickly dispose of legally insufficient claims based on speech on matters of public concern. No, says the appellate court:
Initially, we note that the parties do not dispute on appeal that the "counterclaim subject to the motion is an action involving public petition and participation …," i.e., one subject to the protections of New York's anti-SLAPP statutes. Thus, as relevant here, the limited issue before this Court is whether defendant, as "the party responding to the motion[,] demonstrate[d] that the cause of action has a substantial basis in law." …
The court concluded that under New York procedure, a defamation case can proceed (despite an anti-SLAPP motion) if there's a "substantial basis" for the underlying defamation claim, with no need to show "clear and convincing evidence" at that stage of the litigation. And the court continues,
[W]e now consider whether defendant proffered a substantial basis from which to conclude that plaintiff's statement on social media "was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue," i.e., actual malice [which the New York anti-SLAPP statute requires as to all defamation claims on matters of public concern, regardless of whether the target of the statement is a public figure]. Here, we agree with plaintiff that a mere conclusory denial of her allegation that defendant sexually assaulted her would be insufficient to support the conclusion that plaintiff knowingly posted a false statement on social media or did so with a reckless disregard for the truth.
Defendant, however, opposed the motion with a detailed statement recounting his version of the sexual encounter underlying the present litigation, including the specific facts on which he relied for his assertions that plaintiff was not intoxicated at the time and that the encounter was consensual. A reasonable mind could therefore conclude that the differences between the parties' versions of events could not be accounted for by, for example, differences in perception, mistake, faulty memory, or alcohol impairment, but instead that plaintiff knowingly made a false statement, even if such a conclusion is "not necessarily the most probable" in light of all the evidence.
Because of this, Weiner's case can go forward, though if it gets to trial he will then have to show by clear and convincing evidence that Vitagliano's allegations were false (and said with knowledge or recklessness as to their falsehood).
Karen G. Felter (Smith Sovik Kendrick & Sugnet P.C.) represents Weiner.
