Cosby case offers libel warning for Trump and Moore

U.S. Senate candidate Roy Moore of Alabama has promised to sue the Washington Post for printing a woman’s accusation that he molested her when she was 14 and he was 32. The threat is reminiscent of presidential candidate Donald Trump’s vow last year to sue the 16 women who accused him of making unwanted sexual advances.

Neither man has followed through on the threat — and there can be hazards for wellknown people who strike back at their accusers. The dangers were underscored last week by a California appeals court, which allowed a model to sue both Bill Cosby and his lawyer for branding her a liar after she accused the former TV star in 2014 of having drugged and raped her in 1982.

Cosby argued that he had only been stating his opinion —

that the woman, Janice Dickinson, was a liar based on her reputation — and not making any factual claims. But the Second District Court of Appeal in Los Angeles said Cosby had “repeatedly and unconditionally asserted that Dickinson lied about Cosby having raped her,” a potential basis for a libel suit.

The court said Dickinson, who is also a former actress and reality TV performer, could sue Cosby’s attorney, Martin Singer, over a legal document that repeated Cosby’s allegations. The civil case is unfolding even as Cosby faces a retrial in April on criminal charges of sexually assaulting a woman in Pennsylvania, after his first trial ended in a hung jury.

Moore, meanwhile, has seen his prospects in a Dec. 12 special election shaken by the Post’s account of accusations that he groped a 14-year-old girl in his home in 1979 and pursued relationships with three other girls when he was in his 30s and they were 16 to 18.

The newspaper said friends of the woman who says Moore molested her have given statements that support her account. Since then, five other women have told news organizations that Moore pursued them as teenagers, one of them claiming a sexual assault.

Moore, a former Alabama chief justice who was removed from the bench for defying the U.S. Supreme Court’s ruling legalizing same-sex marriage, has denied the women’s allegations and accused the Post of political motivations. The newspaper “will be sued,” he said.

Don’t count on it, said Erwin Chemerinsky, the UC Berkeley law school dean and a constitutional law scholar.

“I would be shocked if this lawsuit was filed,” he said. And under the Supreme Court’s legal standards for libel, established in 1964, there’s no way Moore could win such a suit, Chemerinsky said.

The court set a high bar for defamation suits by public officials in a case involving the New York Times. The Times had published an ad in 1960, signed by civil rights leaders, about racial oppression by police in the South that contained minor errors — for example, saying student marchers had sung “America the Beautiful” rather than “The Star-Spangled Banner,” and overstating police presence on one campus.

An Alabama police commissioner sued the paper for printing an inaccurate account that he claimed harmed his reputation, and won $500,000 in damages from a jury under the state’s libel law. But the Supreme Court overturned the verdict and ruled unanimously that officials claiming libel must prove they were injured by a knowing and intentional lie — or at least that the news organization had recklessly ignored the truth. Simply publishing a falsehood was no longer enough.

“This is designed to encourage robust public debate on matters of public concern,” said John Diamond, a UC Hastings law professor in San Francisco who teaches media law. Government officials and candidates such as Moore “have a platform from which to respond,” he said, “and to a large extent they have chosen this life.”

As Chemerinsky put it, the court read the Constitution’s protections of free speech and a free press as a guarantee that “there is a full and open discussion about those who run for office, even though false things may be said at times. Let the speech go on.”

The same standard applies to libel suits by celebrities and other public figures, including those who have taken prominent positions on public controversies. Other private citizens suing for libel are required to prove only that the falsehood that injured them was made negligently or carelessly — but Diamond said Moore probably couldn’t meet even that standard if it applied to him.

The Post’s story was carefully documented and “extremely credible,” Diamond said. Several congressional Republican leaders have said they believe Moore’s accusers.

As for Trump, he is facing a lawsuit filed in January by Summer Zervos, who said the future president groped and kissed her without her consent after she appeared as a contestant on “The Apprentice” reality TV show.

Zervos sued Trump for calling her a liar who was looking for fame and fortune. Her lawyers are seeking records of all accusations of sexual misconduct against Trump — claims by 16 women whom Trump, at an October 2016 campaign rally, described as liars who “will be sued after the election is over.”

In response to Zervos’ suit, Trump’s lawyers have argued that he was only expressing his political opinion about his accusers’ motives, an argument similar to the one by Cosby that the California court rejected. Trump also contends a sitting president can’t be sued in a state court. Both issues are before the New York court where Zervos filed her suit.

On another front, Trump promised supporters at a February 2016 rally that he would “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” A year later, he tweeted, “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!”

Trump was off base on his libel-law threat for two reasons, Chemerinsky said: Such laws are set by states, not the federal government, and those laws are governed by the Supreme Court’s 1964 ruling on suits by public officials, which can be altered only by the court or a constitutional amendment.

“The conservatives on the Supreme Court are very much generally pro-speech,” said the Berkeley law school dean. “I don’t think it’s likely the court we have now or in the foreseeable future is going to reconsider that.” Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @egelko