#MeToo Stories Can Lead to Libel Suits

…But that doesn’t mean assault survivors shouldn’t speak out. Here’s why

Last Updated: November 4, 2017 @ 9:36 AM

Melanie Kohler found out the hard way that posting a rape accusation on social media can get you sued. Kohler was hit with a libel lawsuit filed by Brett Ratner after she accused the director of rape in a Facebook post.

It might come as a surprise to some, but a single post on Facebook, Twitter or other social media accusing a specific person of serious wrongdoing — including sexual assault or sexual harassment — could land the author in court accused of libel. The #MeToo movement has inspired a wellspring of survivors coming forward to tell their stories of sexual harassment and abuse — but they are subject to the same libel laws as everyone else.

Just ask singer-actress Courtney Love, widow of singer Kurt Cobain. She was sued twice for her tweets, which spawned the phrase “twibel.” She settled one case out of court and won a jury trial in the other.

“The important point is that postings on social media are not immune from libel,” University of Minnesota journalism professor Jane Kirtley told TheWrap.

Libel law has always applied to any kind of published statement, regardless of the platform, said Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida.

“Libel law is hundreds of years old, but it applies today to new media platforms like Facebook and Twitter just as it did back in the day with books and leaflets.  A single defamatory post or tweet, even if later deleted, can spell trouble if it is false. Courtney Love is a prime example of a celebrity who knows this all too well,” Calvert told TheWrap.

David Snyder, executive director of the non-profit First Amendment Coalition, told TheWrap that any social media post, no matter how obscure, can trigger a libel lawsuit “as long as at least one person other than the speaker/writer saw it.”

In addition, news organizations can be sued for repeating social media accusations, Kirtley said.

But none of that means people who have been assaulted shouldn’t speak out.

Both accusers and the media can defeat libel lawsuits on several different grounds. They can present evidence to show that the accusations are true, such as testimony from colleagues, friends and family that the accuser told others about the incident at the time happened. Other victims might be allowed to testify to show a pattern of the same kind of abuse.
If the people being accused are public figures, accusers and the media can defeat a libel lawsuit by showing that they published it without actual malice — that is, that they believed the accusations, or had no serious doubts the accusations were true.
The #MeToo movement was sparked by the dozens of accusations against Harvey Weinstein, who has denied forcing anyone into non-consensual sex. The accusations against him led to many other accusers to come forward, including against Ratner, the director and producer of films including “X-Men: The Last Stand,” “Rush Hour,” and “Horrible Bosses.”

Ratner sued Kohler in federal court in Hawaii on Wednesday, claiming that her post is “false, fabricated, and fictional” and she posted it “maliciously” to hurt Ratner’s reputation. Ratner has also denied the accusations against him detailed in a Los Angeles Times story this week.

Kohler said in her Oct. 20 Facebook post that Ratner had “preyed on me as a drunk girl [and] forced himself upon me.” She also wrote, “Brett Ratner raped me.”

Kohler told the Times that she posted about Ratner because, “The culture is changing and every little voice — even my voice — could potentially matter.” She said she took down her post after Ratner’s attorney, Marty Singer, called and threatened to sue. Ratner sued even though she removed the post at his request, she said.

Kohler’s attorney, Roberta Kaplan, told the Times that Ratner was “wrong” to file the lawsuit.

“The goal of these lawsuits is to intimidate women,” Kohler spokesman Bill Burton added to the Times. “Melanie will not be intimidated.”

Singer denied that the lawsuit was aimed at frightening other women away from speaking out.

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