Giuffre v. Dershowitz - 410 F. Supp. 3d 564 (S.D.N.Y. 2019)

Rule:

The qualified privilege of reply is an affirmative defense that a plaintiff has a right to rebut. If a defendant's reply was made in bad faith the defense fails and that it is the function of a jury to pass upon the question of whether or not defendant published the alleged defamatory matter in good faith, as this is a subject on which reasonable men may differ.

Facts:

Plaintiff Virginia Giuffre brought the present action for defamation against defendant Alan Dershowitz. Plaintiff has long claimed that she was forced to engage in sexual activity with defendant. In response, defendant has repeatedly called plaintiff a liar, said that she committed perjury, and claimed that she conspired with her lawyers at the law firm of Boies Schiller Flexner LLP ("the Firm" or "BSF") to extort defendant and others. According to plaintiff, defendant’s statements, which plaintiff averred to be false, were actionable defamation. Defendant filed a motion to dismiss plaintiff’s claims for failure to state a claim. According to defendant, his statements were protected by the self-defense privilege and therefore not actionable.

Issue:

Did the plaintiff fail to state a claim, thereby warranting the grant of defendant’s motion to dismiss?

Answer:

No.

Conclusion:

The court denied the defendant's motion to dismiss because the plaintiff pled sufficient facts to defeat the qualified self-defense privilege. The plaintiff pled that she was forced to have sex with the defendant. Taking this fact to be true it was a logical conclusion that a false denial of this charge was necessarily made with knowledge of falsity. The defendant could not have had sex with the plaintiff and falsely denied that fact without knowing that what he was saying was untrue.