In 2014, three years before the #MeToo movement swept Hollywood, Kesha accused Dr. Luke of sexual assault and battery in a blistering lawsuit. Hours after that was filed, Dr. Luke fired back by suing Kesha, her mother and even one of her attorneys for defamation. Two years later, Bill Cosby pulled the same maneuver, countersuing seven of his accusers. While the ordeal was difficult enough for Kesha, a chart-topping music star, it was financially crushing for the Cosby accusers who were not public figures. For their part, Kesha and Dr. Luke reached a settlement in 2023, ending a battle that lasted nearly a decade and likely cost millions.
In the wake of the industrywide reckoning around sexual harassment in 2017, many observers anticipated that retaliatory defamation lawsuits would subside. Instead, the practice intensified, with a host of men — including Brett Ratner and more recently, Jay-Z — countersuing their accusers.
Now, attorney and law professor Victoria Burke is trying to stymie that practice. Burke is the architect of the Speak Your Truth model legislation that passed in California in 2023 and is being considered in New York. She has introduced similar bills across the country given that the accused will often file their lawsuits in states that are friendlier for defamation claims than California. (Jay-Z is suing his Jane Doe in Alabama; Johnny Depp brought his defamation case against Amber Heard in Virginia and won.) In New York, the Speak Your Truth Act would amend the state’s Civil Rights Law to protect communications about incidents of sexual assault, harassment or discrimination.
“I felt that the defamation laws, which are intended to be a shield, were suddenly being used as a sword,” says Burke, who began sending her original draft proposal to California legislators in the summer of 2022.
The New York version would also ensure that if the accused files a defamation lawsuit over protected statements and loses, the accuser can recoup legal fees and be awarded additional money for resulting harm.
“The legislation really is laudable, and having litigated these kinds of cases over the years, it’s something that needs to be done,” says Mark Geragos, a member of Kesha’s legal team.
Often, the prospect of a defamation lawsuit alone can have a chilling effect. In December, Erica Vladimer, co-founder of the Sexual Harassment Working Group, received a document preservation notice from attorneys for Andrew Cuomo. As the former governor runs for New York City mayor, he has used aggressive tactics to rehab his image after being accused by multiple women, including former aide Charlotte Bennett, of sexual harassment or inappropriate behavior. The notice sent to Vladimer specified that SHWG, an advocacy group focused on #MeToo issues at the state-government level, retain any communication involving Bennett. But the letter was perplexing because Cuomo had not yet filed a lawsuit against Bennett.
“The minute I got this, my assumption was that they plan to try and get information from me for the defamation suit that they plan to bring against Charlotte,” Vladimer says. “I was not surprised, and yet a part of me was still a little shook. Nobody should be able to use or weaponize the legal system in that way to intimidate.”
In response, Cuomo spokesman Rich Azzopardi tells Variety: “Preservation letters are routinely sent to individuals who may have evidence relevant to a claim, and Governor Cuomo [subsequently filed] a claim against Ms. Bennett.”
On Dec. 19, Cuomo filed a lawsuit against Bennett just days after she withdrew a lawsuit she had filed against her former boss in 2022. Her attorney cited “invasive discovery requests” as a reason.
In California, Speak Your Truth is about to face its first high-profile test. Attorneys for Blake Lively used the law to file a motion to dismiss Justin Baldoni’s defamation lawsuit against her. But the case is unique in that Baldoni’s claims extend beyond defamation to include civil extortion and invasion of privacy and include multiple additional plaintiffs who are not accused of sexual harassment.)
Even with the law on the books in California, defamation suits keep flying. In August, Backstreet Boys member Nick Carter filed a $2.5 million defamation lawsuit against rape accuser Melissa Schuman after filing a similar action against the former DREAM singer in Nevada. Last month, Smokey Robinson filed a $500 million lawsuit in Los Angeles Superior Court against the four women who accused him of sexual assault. The women could face steep costs in defending themselves. Alison Anderson, a partner at Boies Schiller Flexner who co-leads the firm’s sexual misconduct practice, estimates that it can cost $3 million to $6 million to defend against a Hollywood defamation case. But Speak Your Truth helps level the playing field.
“Giving survivors the opportunity to collect attorney fees and even additional damages will allow them to get counsel that’s better matched to take on these litigious plaintiffs,” says Anderson. “A Hollywood big shot will go out and get the expensive, powerful law firms and file tons of motions and everything they can think of. Because part of the process is trying to bury the other side.”
