Bernie Fine’s accusers will have to go through multiple stages in order to prove they were defamed in their upcoming lawsuit.

On Dec. 13, Bobby Davis and his stepbrother, Mike Lang, announced they would file a defamation lawsuit against both Syracuse University and head men’s basketball coach Jim Boeheim. According to the lawsuit, Boeheim stated to national news media that Davis and Lang were lying and ‘just seeking a pay day.’

A defamation lawsuit is a civil lawsuit where a party uses a body of civil law to recover damages for harm to their reputation, said Roy Gutterman, an associate professor of communications law and journalism at the S.I. Newhouse School of Public Communications.

‘Because we hold our reputation in high esteem and our reputations are important to us,’ Gutterman said, ‘we have a body of law that allows people to protect their reputations.’

In order for a defamation lawsuit to be filed, a plaintiff must prove that a false statement was published about them and is causing harm to their reputation, through financial damages, Gutterman said. If the lawsuit goes to trial, the jury would determine how much that harm is worth, he said.

However, the person bringing the lawsuit has the burden of proof, and establishing falsity is not an easy thing to do, Gutterman said. In order to establish that a false statement was published, the plaintiffs have to go to court and prove the defendant said it. In this case, it looks like the accusers are going to have to bring old material into court, he said.

Gutterman said this particular lawsuit might be difficult because of some of the statements made about the accusers.

‘There might be a big question to whether any liability can even be attached to these statements that were made at the press conference,’ he said.

He said the statements might be considered ‘privileged,’ meaning they don’t come with any liability because they are pure opinion. In New York state, statements that are clearly opinionated are privileged.

‘That could be a serious question that might provide some level of immunity for the defendants in this case,’ said Gutterman.

David Rubin, a communications law professor in Newhouse, said there are multiple issues involved in this case, including the need to convince the judge that the statements Boeheim said were factual.

‘That’s the first thing that I think we’ll have to get an answer to,’ Rubin said. ‘I would not be surprised if a judge dismissed the case on those grounds.’

Rubin said the next issue is deciding whether Davis and Lang are public or private people. He said he thinks Davis and Lang would argue they are private. If they were private people, they would have to prove that Boeheim made such statements with gross negligence, or in reckless disregard for the truth, Rubin said.

However, Rubin said he thinks Boeheim’s attorneys are going to argue that Davis and Lang are vortex public figures, meaning they injected themselves into the controversy and made themselves public figures.

‘My guess is that they are probably vortex public people, that they are not private citizens for purposes of libel,’ Rubin said. ‘Therefore, they will both have to prove that Boeheim defamed them with actual malice.’

A judge could dismiss the case at this point on grounds that there’s no evidence of such malice, Rubin said. However, if the case were to proceed, it would enter the discovery stage, where both sides would use their subpoena powers to acquire documents from the opposing sideto depose them, or have them testify under oath.

Rubin said he thinks a crucial document in this lawsuit will be SU’s 2005 investigation of the molestation case. It’s a document that will be important to both sides, he said, because it will look into what Boeheim knew in 2005 and how it led to the defamation action.

However, Rubin said he doesn’t think the university will release the investigation because then it would become public — a point that officials wouldn’t want to reach.

Jules L. Smith, a civil rights attorney at law firm Blitman and King LLP, said defamation lawsuits are not very common and rarely successful. There are barriers the courts put in place to make them that way, he said.

In addition to proving the statements were of opinion and said with actual malice, another barrier is the time limit, Smith said. The person bringing the lawsuit has to do so within one year of the defamation and declare the specific words that were said to be defamatory. There are also problems with proving the damages and getting the jury to conclude that the statements should be punished, he said.

‘Those are things that the courts have put in place to make it more difficult to pursue such cases,’ he said. ‘Maybe part of the reason is that the courts don’t like these cases.’

Smith said that if the courts had free litigation, anyone could sue whenever they didn’t like what was said about them.

Smith said that in Onondaga County, judges usually want to finish defamation lawsuits in 18 months, but it depends on the complexity of the case, how busy the courts are and if there are more claims involved, among other circumstances.

He said he thinks this particular case will take 18 months as well, but might be quicker if there is a motion to settle.

Professor Rubin also said these cases take a long time.

‘It’s possible that if the university doesn’t get this case dismissed right away on the grounds that what Boeheim said is opinion, the university might move to settle right away,’ he said.

Rubin said if this were to happen, the university would not admit fault, as neither side usually does. He said Davis and Lang would receive a sort of payment, and that would be the end.

‘But, you know, all along this case has thrown us some surprises,’ he said. ‘So it could proceed.’

mjberner@syr.edu

Published on December 28, 2011 at 12:00 pm

Contact Maddy: mjberner@syr.edu