We previously saw a bizarre trademark case where Allen’s image was used but later claimed to be without value by American Apparel due to his history.
Maco however is suggesting that his professional reputation was injured by the op-ed. What is interesting is that Allen is not threatening litigation against Dylan. Dylan recounted how, when she was 7 years old, she was abused and then how Hollywood ignored the abuse.
In his reply, Allen suggests that Dylan’s allegations were most likely the result of coaching by Mia Farrow amid their “terribly acrimonious breakup.” He noted the findings of Child Sexual Abuse Clinic of the Yale-New Haven Hospital that there was no abuse. (The basis for this conclusion was challenged by the family as discussed in Vanity Fair’s recent “Ten Undeniable Facts” story on the allegations). He then adds that “[t]his conclusion disappointed a number of people. The district attorney was champing at the bit to prosecute a celebrity case, and Justice Elliott Wilk, the custody judge, wrote a very irresponsible opinion saying when it came to the molestation, ‘we will probably never know what occurred.’”
Maco responded with outrage that the op-ed constituted an “attack upon my character was unprovoked, gratuitous, unwarranted and most importantly, unsupported by my history as a prosecutor.” He added that “in coming days I will consider the wisdom of seeking legal representation in order to further address Allen’s assault upon my character.”
Maco is right that it is an attack on his character and professionalism but he is wrong that it is actionable. Maco was a public official and is subject to the standard under New York Times v. Sullivan. He would have to show that Allen acted with actual malice as can be shown by either knowingly disregard of the falsity or reckless disregard of the truth. Allen will responded that he stated an opinion, which is protected, as to the basis and motivation of the action taken against him.
Maco insisted in 1993 that there was probable cause but he decided not to prosecute to protect the child. That is a curious rationale since any prosecution for child abuse involves a child and the risk of trauma. Moreover, Maco’s statement on probable cause was itself an attack on Allen’s character and actions. Moreover, a later disciplinary board found that Maco may have prejudiced the later custody battle by making an accusation without formal charges.
Maco does not have a claim in my view and the threat is an empty one. In addition, I do not believe that it is appropriate for prosecutors to publicly say that they had probable cause to charge an individual who was not in fact charged. If you believe that Allen committed a heinous offense against a child, you should prosecute him. If you choose not to do so, you should not then attack a citizen in the media as presumptively guilty. By the way, Mr. Maco, that is an opinion.
Source: ABA Journal