The First Amendment Is for #MeToo

It is, by now, a familiar pattern: A woman accuses a man in a position of power— perhaps a public official, or a high-ranking business executive, or a celebrity— of sexual misconduct. The alleged perpetrator responds by denying the accusations and attacking his accuser’s credibility. The news media reports on the controversy, and bystanders weigh in with their personal views about the allegations. Then someone files a defamation suit.

The #MeToo movement, which first gathered steam in late 2017 in response to the sexual abuse allegations of dozens of women against film producer Harvey Weinstein, has emboldened accusers and, in turn, led to a proliferation of defamation lawsuits. In some cases, it is the individual accused of sexual misconduct who asserts a claim—against his accuser for making the allegations, against the news media for reporting on them, or even against ordinary people for commenting on them. In other cases, it is the accuser who brings a defamation claim against her alleged perpetrator for calling her a liar, often after the statute of limitations on any civil or criminal action for the underlying misconduct has long passed. All of these scenarios implicate freedom of speech under the First Amendment.

Reprinted with permission from New Jersey Lawyer, December / 2020

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