The media coverage of the scandal involving Liberty University President Jerry Falwell Jr. has been overwhelming.  That is to be expected. An evangelical figure leaves his post at a religious university after a photo with his pants unzipped on a yacht owned by a Nascar mogul who received lucrative deals with the university. Then came the allegations of Giancarlo Granda that he had a long time sexual relationship with Falwell’s wife Becki and Rev. Falwell liked to watch the sexual trysts. Falwell has alleged that Granda was extorting money.  Michael Cohen, the thuggish former counsel for President Donald Trump, is even involved. In this tsunami of coverage, the interesting element is the one that is missing: no one has threatened a defamation action. Such a lawsuit could raise some interesting issues under the common law.

The two men have one to two years depending on the jurisdiction, but there has been no word of a notice letter or threat of a defamation case. There is also an absence of a criminal complaint despite the public claim of a criminal act. Falwell, who received a J.D. from the University of Virginia, is no doubt well versed in such options.

Falwell went public an acknowledged the affair between Granda and his wife.  His statement clearly accuses Granda of a criminal act:

“During a vacation over eight years ago, Becki and I met an ambitious young man who was working at our hotel and was saving up his money to go to school. We encouraged him to pursue an education and a career and we were impressed by his initiative in suggesting a local real estate opportunity. My family members eventually made an investment in a local property, included him in the deal because he could play an active role in managing it, and became close with him and his family.

Shortly thereafter, Becki had an inappropriate personal relationship with this person, something in which I was not involved — it was nonetheless very upsetting to learn about. After I learned this, I lost 80 pounds and people who saw me regularly thought that I was physically unwell, when in reality I was just balancing how to be most supportive of Becki, who I love, while also reflecting and praying about whether there were ways I could have been more supportive of her and given her proper attention.”

While we tried to distance ourselves from him over time, he unfortunately became increasingly angry and aggressive. Eventually, he began threatening to publicly reveal this secret relationship with Becki and to deliberately embarrass my wife, family, and Liberty University unless we agreed to pay him substantial monies.”

For his part, Granda has clearly accused Falwell of moral turpitude and depravity in an affair that began in 2012 and gives a detailed account of being picked up by Becki and, as they were heading to her hotel room, allegedly stating “‘But one thing . . . My husband likes to watch.'” He then alleges that Falwell regularly watched them have sex as a type of fetish.

One would think that with those statements, someone would sue someone for defamation.

Granda v. Falwell

If Falwell is lying, Granda clearly has a case for defamation. Indeed, what Falwell stated would be a case of slander per se as well as libel.  Under Florida law, it is libelous per se to impute to another a criminal offense amounting to a felony. Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240 (S.D. Fla. 2014). There is no question that what Falwell is describing is criminal extortion.

Here is the Florida provision:

836.05 Threats; extortion.—Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

This would seem an allegation that that Granda “maliciously threatens to expose another to disgrace.”

Of course, truth is a defense to defamation, but if this is false, Granda should sue.

Falwell v. Granda

Under the common law, per se categories include statements alleging moral turpitude and unchastity as per se categories of defamation.  This could not be more of a prototypical case of alleged moral turpitude.

This lawsuit would raise an interesting aspect to common law torts.  Obviously, some of the traditional categories are inherently sexists like saying that impugning the chastity of a women (rather than men) is defamation. However, there is also debate over the continued viability of moral turpitude as a category given the varied opinions on what constitutes a moral lifestyle. This came up in the 1950s in a bizarre case involving homosexuality as a defamatory accusation. In Neiman-Marcus v. Lait, 13 FRD 311 (SDNY 1952), employees of that high-end story sued the author of a book titled “U.S.A. Confidential.” The book claimed that some of the models at the story and all of the saleswomen in the Dallas store were “call girls.” It further stated that most of the salesmen in the men’s department were “faggots.” The issue came down to the size of the group. With 382 saleswomen and models, the court found that the group was too large. However, with the 25 salesmen, the court found that an action could be maintained.

Today most of us would oppose the use of homosexuality as per se defamatory, any more than heterosexuality, as a claim.  Indeed, a court held that homosexuality is not a per se category. Some individuals however can still claim that their positions can make otherwise common non-defamatory remarks defamatory in the context of their case or lives. Falwell is an evangelical figure and this fetish allegation is devastating for his position in his community. In some ways, this argument moves the focus from moral turpitude to professional standing. That remains an area that courts will have to explore in the years to come.

Becki Falwell could also sue and, since she regularly appears with her husband at religious events, could claim the same loss of standing.

Again, truth is a defense, but if this is false, Falwell should sue.

So someone should use if any of this is untrue. The question is whether someone will.