We previously discussed the threat of retired Harvard Law Professor Alan Dershowitz to sue Utah Law Professor and former federal judge Paul Cassell (and his co-counsel Bradley Edwards) for defamation for papers mentioning him in revelation to the sex trafficking scandal of Florida financier Jeffrey Epstein. The lawyers sought unsuccessfully to depose Dershowitz who has been accused of being one of the men who were given underaged girls to sleep with by Epstein. At the time, I wrote that Dershowitz’s statements themselves could be viewed as defamatory and actionable. It appears that Cassell and Edwards were thinking the same thing. They have now sued Dershowitz for defamation.

Dershowitz also made a rare threat of a bar complaint over his representation of a client in the notorious case of billionaire and convicted pedophile Jeffrey Epstein. Even more rare is the source of the threatened complaint: retired law professor Alan Dershowitz of the Harvard Law School. Epstein is good friends with Bill Clinton and Duke of York Prince Andrew, 54, who have been mentioned in litigation over allegations of the use of underaged “sex slaves” and Epstein’s alleged penchant for watching (and filming) people having sex with these girls.

Dershowitz says that the sex claims are a “completely, totally fabricated, made-up story” and that he is an “innocent victim of an extortion conspiracy.” I noted that the reference to extortion itself could be viewed as defamatory since it makes the lawyers active participants in such extortion and any such statements made in public would be unprotected by privilege governing statements in court.

Cassell and Edwards however did not respond in kind and said that they would confine their statements to court filings “out of respect for the court’s desire to keep this case from being litigated in the press.” They noted however that they have “tried to depose Mr. Dershowitz on these subjects, although he has avoided those deposition requests. Nevertheless, we would be pleased to consider any sworn testimony and documentary evidence Mr. Dershowitz would like to provide which he contends would refute any of our allegations.”

As I mentioned, it is hard to see how it is a disbarring offense or defamation for these attorneys to reference the allegations of their client in court papers, particularly given the immunity protection afforded from allegations in court. However, in addition to the extortion reference, Dershowitz said “I’m planning to file disbarment charges against the two lawyers who signed this petition without even checking the manifests of airplanes or travel itineraries, et cetera.” Thus, he has made public comments (outside of protected court statements) linking the lawyers to extortion and unprofessional conduct, both per se categories of defamation. He is also quoted as calling Cassell and Edwards “sleazy, unprofessional, unethical lawyers” who should have known that their client is “lying through her teeth.” Once again, the reference to being “unethical” can be alleged to be more than opinion. It is stating something that can be challenged as factually false and per se defamatory.

Dershowitz claims to be “thrilled” by the lawsuit but I would be less excited. It would have been better to try to sue for an out-of-court statement for defamation in his own right. After all, Dershowitz is insisting that he only went to Epstein’s island home once and was with his family the whole time. That is the type of claim that makes for a serious defamation action if the flight manifests and other documents support him.
Jane Doe #3 alleges that Epstein ordered her to have “sexual relations” with Mr. Dershowitz on the businessman’s private plane and on his private Caribbean island. However, she also says that she was ordered to have sex with Dershowitz at Epstein’s homes in New York City and Palm Beach.

Now, instead of fighting of the stronger ground of his own claimed innocence, he will have to defend against raw and frankly ill-considered statements about counsel for the accuser. Moreover, Cassell and Edwards will go get what they long sought: Dershowitz in deposition under oath.

As expected the complaint (below) zeros in on out-of-court (and unprotected) statements, particularly in a CNN interview. Notably, the complaint takes a minimalist approach and does not go into detail on the specific statements. While many lawyers prefer to state the minimum, this is a bit more of a bare bones complaint than most would file in this type of case. The complaint references the public comments generally as part of Dershowitz’s “a massive public media assault on the reputation and character” of counsel.”

A review of the CNN interview shows a target rich environment for a defamation action against Dershowitz. Indeed, I may be playing this interview in this year’s torts class on both attorney privilege and per se defamation. Here are some highlights (the highlights are my own0:

DERSHOWITZ: Well, I fit beautifully into the profile because they want to be able to challenge the plea agreement . . . And if they could find a lawyer who helped draft the agreement who also was a criminal having sex, wow, that could help them blow up the agreement.

So they sat down together, the three of them, these two sleazy unprofessional disbarable lawyers, Paul [Cassell], former federal judge, current professor, and another sleazy lawyer from Florida, Brad Edwards, whose partner is in jail for 50 years for trying to sell Epstein cases fraudulently.

They sat down together and they said, who would fit into this description, a lawyer who knows Epstein, who helped draft, Dershowitz so they and the woman got together and contrived and made this up.

. . .

DERSHOWITZ: . . .
But you don’t go after the lawyer and falsely charge him with a sex act which you know he didn’t commit because you just have to look at the evidence. Look at the plane manifests. Look at my travel. Look at my passport. Call me. Ask me. I can produce the witnesses. The lawyers didn’t do that.

LEMON: It’s the stuff out of television. It sounds like —

DERSHOWITZ: Like scrawling something on a bathroom wall.

LEMON: It sounds like a “Law & Order” episode. Have you ever in your career seen anything like this happening to an attorney who represented someone?

DERSHOWITZ: No. I’ve never seen — no. I’ve never seen two lawyers like Paul Casol and Brad Edwards engage in such unethical, disbarable conduct. And I am accusing them on your show of unethical conduct. I’m opening myself up to a defamation lawsuit.

I’m asking her to file criminal rape charges against me. I am waiving the statute of limitations or any immunity. But if she files a false rape charge against me, she goes to jail for filing a false charge.

LEMON: You’re going to sue them.

DERSHOWITZ: What these two lawyers and this woman have done to rape victims — I’m suing them. These two lawyers and this woman have hurt rape victims so much by putting forth a fake rape victim. They have hurt rape victims. They have hurt other kinds of victims.

Every feminist, every victim of rape should be furious at this woman, should be furious at these lawyers. They claim to be victims’ rights lawyers. They create victims. But they picked the wrong victim this time.

They picked an innocent victim and I’m not going to rest until not only am I completely vindicated, but they admit that they willfully and knowingly filed this legal paper knowing that it was completely false.

LEMON: OK, so you categorically deny everything. CNN TONIGHT, and I need to say, this reached out to Virginia Roberts’ attorneys, and here’s what her attorneys, Brad Edwards, told CNN. This is via e-mail and this was on Friday.

It said, “We intend only to litigate the relevant issues in court and not to play into any side show attempted by anyone. We do not plead anything before carefully investigating all of the allegations first.” Your reaction, Alan?

DERSHOWITZ: Well, they are hiding. What they did is they filed this thing in a document that gives them protection and privilege. They didn’t ask to prove it. They didn’t ask for a hearing. They didn’t ask for anything. They just threw it out there and expected me to remain silent.

Now we’re trying to file a motion to intervene. I hope the court lets us in because otherwise, I have no legal response and of course, I will have to sue them for defamation and will have to bring charges against them in front of the BAR Association.

I need a legal forum in which to litigate this. I want witnesses. I want the documentary evidence to come forward. We will destroy the credibility of this woman. She is a serial liar who’s lied about so many people, and the public has to know that she has lied and these lawyers have tried to destroy my reputation.

The end result will be they will no longer be able to practice law. Paul [Cassell] should not be able to teach students. He should not be able to practice law. A law license is not a license to victimize innocent people the way they’ve done.

. . .

DERSHOWITZ: Well, we are planning to file a defamation action in various parts of the world, perhaps in London, perhaps in New York, perhaps in Florida. Everywhere where the defamation has occurred we’re going to file a lawsuit demanding that they prove what they’ve alleged.

They can’t because it’s not true. We’re going to file disciplinary charges against the lawyers for failing to take even the most minimal steps of trying to corroborate the word of this serial liar who’s had a long, long history of lying.

They can’t just believe a serial liar and put in a piece of paper not even asking for a hearing just saying the piece of paper is there, let it lie there, let the media pick it up. By the way, they dropped the dime on the media when he they filed it.

Otherwise, the media never would have noticed a filing in Palm Beach County just before New Year’s. So clearly they had to notify the press of it this. The purpose of the legal proceeding was to get you folks to cover this story.

Well, Dershowitz has the “legal forum” that he was seeking, but he will be on defense. There is a material difference in how you attacks such statements and I think this is not the ideal context for Dershowitz. However, it is likely to get rougher before it gets better. Dershowitz will likely feel obligated to follow through with a bar complaint, creating a three-front battle between the original civil action, the new civil action, and the bar action.

Both Cassell and Dershowitz would be considered public figures under New York Times v. Sullivan. Public officials are placed under a higher standard for defamation in the case: requiring a showing of actual malice or knowing disregard of the truth. This constitutional-based standard is designed to protect free speech, particularly when directed against powerful politicians. Of course, these people are not public figures in the United States and some do not hold public offices. However, the same standard applies to public figures.

The public figure standard was established in Curtis Publishing v. Butts (1967). The case involved a March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul “Bear” Bryant to fix a 1962 football game in Alabama’s favor. In a 5-4 decision, Chief Justice Warren wrote a concurrence that extended the ruling in New York Times v. Sullivan on public officials to public figures. He found the same reasons for applying the higher standard to public officials as present in cases involving public figures:

[I]t is plain that, although they are not subject to the restraints of the political process, “public figures,” like “public officials,” often play an influential role in ordering society. And surely, as a class, these “public figures” have as ready access as “public officials” to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of “public officials.” The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.

Indeed, the case is filled with public figures and one (Epstein) who could be viewed as so notorious and sleazy as to be “libel proof” — or someone who has no reputation to lose.

Ironically, Bill (and by extension Hillary) Clinton and Prince Andrew are likely the least thrilled by the new development. These actions mean more depositions and more investigation when they thought that the generous immunity deal had effectively tied off or limited their exposure in this case.

Here is the defamation lawsuit.