Tat for Tit

Yuh, I know the proverb is the other way ‘round,  but in this  instance the reversal is appropriate.

Alan Dershowitz has been sued for defamation by Virginia Giuffre, because he tweeted out that her accusation that he raped her when she was a minor is a lie. And this is the same kinda thing we’ve seen in connection with Trump: the statute of limitations has long since expired on the assault, but now the denial of the accusation starts the defamation statute running: “He called me a liar!”

So Dershowitz has demurred to the complaint on 2 grounds: (1) the statute of limitations has expired because he has been saying the accusation is false for well over one year (1 year is the limitation period in NY on defamation) ; and (and this is what interests me) (2) that his denials are protected by a “privilege of self defense” .  He has the absolute right, as a matter of free speech and state tort precedent, to in effect call Giuffre a liar.

Incredibly, this filing is being widely cast as a “cowardly” move on Dershowitz’ part, that he invited this lawsuit, challenged her to sue—and now he’s trying to get it dismissed on petty procedural technicalities before it can get to discovery, before the facts come out.

But in my opinion, the issue of whether a person, accused of a crime or other bad or reputation-destroying action,  has the absolute right to make statements repudiating the accusation, and whether such statements are “privileged” (meaning they can’t be the basis of a defamation suit),  is far, far from a mere procedural technicality.  I cannot comprehend why it hasn’t come up before.

Dershowitz’ brief on the motion to dismiss analogizes the privilege to those which allow actions which would otherwise be assault or battery, when they are committed in defense of life or property.  Basically, if somebody is trying to rape you or grab your wallet, you can hit him or her.  But it doesn’t rest on analogy alone: New York law evidently expressly recognizes the privilege of verbal self defense in the defamation context.

Now, the case is in the SDNY, so I’d imagine the Court won’t kick it out preliminarily.  I think as a mater of law, it could dismiss the suit summarily on either or both of the grounds argued.  But courts generally try to avoid doing that; they’ll punt, let the plaintiff amend, defer the substantive issue until final judgment.

The worst thing that could happen would be if they do decide, preliminarily, that ground #2 is meritless and Dershowitz cannot raise it again.  Sometimes that happens with grounds raised preliminarily.  So, if the court does not sustain Dershowitz’ motion let’s hope the verbal self defense privilege at least remains a viable issue in the  case.

To me, it seems so much a matter of pure common sense, fair play, “mother-wit” that you oughta be able to deny any damaging accusation without your very denial becoming the basis for a lawsuit, that I can’t believe it hasn’t occurred to the majority of the populace, lawyers and laity alike.

Dershowitz is a Prog of course; we owe his present defection to Fox to  B. Hussein’s betrayal; he supported the Lightbringer  because of his express promise to”have Israel’s back” which of course turned to to be stabbing Israel in the back…..but he is a brilliant, clear-thinking legal mind, and I hope for the sake of everybody in public life, and everybody who might be damaged by allegation of long-ago misconduct, that he WINS  on this issue.

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10 thoughts on “Tat for Tit”

  1. Hypatia:
    Dershowitz is a Prog of course; we owe his present defection to Fox to  B. Hussein’s betrayal; he supported the Lightbringer  because of his express promise to”have Israel’s back” which of course turned to to be stabbing Israel in the back…..but he is a brilliant, clear-thinking legal mind, and I hope for the sake of everybody in public life, and everybody who might be damaged by allegation of long-ago misconduct, that he WINS  on this issue.

    I do as well. I have been pleasantly surprised by his commentary on Fox the past year.

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  2. @ctlaw: all the docs including the motion are

    linked at Hollywood Reporter: Alan Dershowitz talks Jeffrey Epstein on TV…But Plays Chicken in Court.  

    I was hoping you would weigh in!  Very curious as to your thoughts.

    (About linking: no, I cant figger out how on my I-pad.  So sue me.  At this point,  I can’t even post pictures I take with my IPad, because,  for some reason I don’t understand, pictures I take have stopped appearing in Photo library, which heretofore they automatically did, so I can’t link to them any more.  Why— I didn’t do anything!!  I found  this out when I wanted to show Ratty a picture of me in my 7/4 garb….no can do.)

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  3. ctlaw:
    The motion is here:

    https://www.documentcloud.org/documents/6187004-Dersh.html

    He’s clearly pushing to extend the caselaw. Without looking at the cases, I can’t comment on whether that extension is reasonable or absurd.

    Of course it’s “reasonable”, in my humble opinion.  The idea of reputation, goodwill, as “property” is well established.  So why shouldn’t there be a privilege in defense of reputation, as there is in defense against theft of or damage to a tangible possession?

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  4. Hypatia:

    ctlaw:
    The motion is here:

    https://www.documentcloud.org/documents/6187004-Dersh.html

    He’s clearly pushing to extend the caselaw. Without looking at the cases, I can’t comment on whether that extension is reasonable or absurd.

    Of course it’s “reasonable”, in my humble opinion.  The idea of reputation, goodwill, as “property” is well established.  So why shouldn’t there be a privilege in defense of reputation, as there is in defense against theft of or damage to a tangible possession?

    Not an absolute defense.

    Even Dershowitz is admitting the defense may be overcome in situations of “abuse” (whatever that means).

    The cases cited by Dershowitz seem to involve responding in kind to a false charge. If you falsely charge me with raping your dog, the defense privilege likely protects my responsive statement that said you were likely a drug addict. But what if your original charge was true?

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  5. What if it was true? Then too bad you didn’t bring a suit based on the activity before the statute ran.

    (In fact, why doesn’t Giuffre sue 0r file criminal charges vs.Dershowitz now ?  I think NY is one of those jurisdictions like DC where as we learned re: Blasey Ford, there is no SoL on rape.)

    i read the brief to admit that in verbal self defense you can’t go beyond the scope of the accusation without losing the privilege.  Like, she sez,He raped me! And he sez:I did not, and she’s a promiscuous slut!

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  6. S’funny that sworn written denials and allegations made in a pleading are privileged, I think almost absolutely, and can’t  form the basis for a defamation suit— yet a blurted-out, oral, non-sworn denial or tweet CAN be.

    Like, Complaint  says”  1. On July 10, 2017; Defendant forcibly and without her consent compelled plaintiff to submit to sex with him” and Answer says “1. DENIED.  On the contrary,  no sexual activity  between the parties took place on that date. Additionally or in the alternative, any sexual contact  which occurred was consensual with and voluntarily engaged  in by Plaintiff” .  Even if defendant loses the suit, which means Plaintiff proved her allegation, he can’t also be sued for what the Answer said.  And, in criminal matters, if you plead “not guilty” and you are later convicted of the offense, you can’t also be sued for the now-proven-false plea.  So why not a similar privilege for unsworn, out-of-court-denials—-even if the accused is lying?

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  7. The way body art is going the phrase will be “Tat for tit” in the future. 🙂

    Hyp, to put up a link in a comment all you have to do is copy and paste the URL on a separate line.

    On your iPad are you able to see the photo you took, right? If so there is a process to help you upload your pictures.

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