Hollywood producer Harvey Weinstein has said he plans to sue the New York Times because the paper only gave him two days to respond to allegations that he sexually harassed women for decades. Does he stand a chance in court?
“In a word: no,” University of Maryland journalism school dean Lucy Dalglish told TheWrap. “It looks as though he’s bringing the suit because they didn’t give him enough time to respond. That’s not grounds for a lawsuit.”
If Weinstein sues the Times on the grounds that the accusations are false, he also faces several significant hurdles.
The Supreme Court has ruled that public figures like Weinstein have the burden to show two things: that the Times article is substantially false and that the Times published the story knowing it was false or had serious doubts about the truth of the story. This is known as publishing with actual malice.
However, Weinstein and his adviser, lawyer Lisa Bloom, have not specified any specific points in Jodi Kantor and Megan Twohey’s story that they believe to be false. Bloom has said Weinstein “denies many of the accusations as patently false,” but she hasn’t said which ones.
The Times has already seized on that point.
“Mr. Weinstein and his lawyer have confirmed the essential points of the story,” Times spokesperson Danielle Rhoades-Ha told the Times Friday. “They have not pointed to any errors or challenged any facts in our story.”
On Thursday, a Times spokesperson told TheWrap, “We published his entire response, which acknowledges a history he now regrets. But the real issue is whether the story is accurate. Mr. Weinstein has not challenged any facts in our story.”
Even if Weinstein could prove the story is materially false — minor errors don’t count — the Supreme Court made clear in its 1964 New York Times v. Sullivan decision that a plaintiff will have a hard time proving actual malice.
“The short answer is that he’s almost certainly a public figure who can prevail only if he shows that the paper acted with reckless disregard of whether the story was true or false,” Harvard Law professor Mark Tushnet told TheWrap. “Departing from journalistic practices by not giving him ‘enough’ time to respond almost certainly isn’t enough to show reckless disregard.”
Perhaps to signal that it has full confidence in the accuracy of its report, the Times said in its article that it was based on “interviews with current and former employees and film industry workers, legal records, emails and internal documents from the businesses Weinstein has run, Miramax and the Weinstein Company.”
Other sources included an internal memo sent to Weinstein Company executives by former employee Lauren O’Connor, who asserted sexual harassment and other misconduct by her boss.
Weinstein would also have to explain to a judge and jury why he apologized if he had nothing to be sorry for, legal experts note.
“I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it,” he said in a statement on Thursday.
“I know I have a long way to go,” he added, explaining that he is working with therapists and taking a leave of absence to “deal with this issue head on.”
If Weinstein’s libel case is weak, he may have another strategy in mind.
Los Angeles attorney Brian Kabateck told TheWrap that he’s seen people threaten to sue over a negative article in the hopes of scaring off follow-ups. It has been widely reported that The New Yorker is also preparing a story about Weinstein’s conduct toward women in his businesses and the industry.
“Post-publication [threats] can be designed to both stop further follow-up stories or to get others to not to repeat or do follow-up stories themselves,” Kabateck said.