Legal Backlash to the #MeToo Movement: A Rise in Defamation Lawsuits Against Survivors

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Introduction

Approximately seven years have passed since the global emergence of the ‘Me Too’ movement.  Originally founded from the efforts of activist and survivor Tarana Burke in 2005, the movement aimed to offer solidarity to victims of sexual assault and harassment.  Fueled by the power of social media, the #MeToo hashtag ignited a movement around the world that empowered survivors to share their experiences.  The bombshells from the movement cascaded a wave of allegations against many powerful men.  However, this tide of accountability birthed a chilling response.  Many of the entrenched figures countered with a formidable weapon: defamation lawsuits against their accusers.

The #MeToo Movement

In its early stages, the #MeToo movement provided crucial resources and avenues for survivors’ healing, previously scarce in a society often in denial or unaware of such experiences.  In 2017, the movement gained tremendous momentum from actress Alyssa Milano, who tweeted, “If you’ve been sexually harassed or assaulted[,] write ‘me too’ as a reply to this tweet.”  The tweet set off the use of the #MeToo hashtag, and within 24 hours, thousands of replies fled her account.  #MeToo hashtags took hold of social media sites and flooded the culture with countless stories of sexual assault and harassment.  The hashtag prompted countless survivors to share their own stories online, symbolizing the overwhelming prevalence of sexual misconduct.  A wave of allegations followed closely behind, leading to repercussions for numerous public figures.

Long-Awaited Consequences

The social consequences of these revelations were swift.  Almost immediately, exposés were written, PR statements crafted, and public figureheads were fired.  Among them was one of the biggest bombshells to come from the movement; the New Yorker and New York Times report about Hollywood mogul and famed movie producer, Harvey Weinstein.  In the reports, several women came forward to share devastating stories of sexual assault, harassment, and misconduct perpetrated by Weinstein.  After both reports were published—only within a few days of each other—the fallout for Weinstein was immediate.  Within three days of the reports, Weinstein was fired from the board of his company.  After one month, the first lawsuit was filed against Weinstein for sexual assault.  To date, over 85 women have accused Weinstein of sexual assault and harassment.  Dozens of women filed civil lawsuits against Weinstein for his conduct.  In 2020, Weinstein was tried and convicted in Manhattan for third-degree rape and first-degree criminal sexual act.  Shortly thereafter, Weinstein was extradited to Los Angeles and convicted of rape.  Weinstein was sentenced to a 23-year sentence in New York and a 16-year sentence in Los Angeles.  His California sentence was ordered to be served consecutively, meaning his sentence there will only begin after he completes his sentence in New York.

With the help of the #MeToo movement, Weinstein, who has been responsible for some of the most successful American movies within the last 20 years, had been successfully knocked off his pedestal.  Countless others followed over the next several years.  One year after the Weinstein revelations, a report found at least 200 prominent men had lost their jobs after public allegations of sexual misconduct.

The delayed feeling of justice experienced by Weinstein’s victims, among others, underscored the long-overdue repercussions of their actions.  The #MeToo movement catalyzed a significant shift by empowering victims.  Yet, as allegations persisted, powerful men, petrified of encountering repercussions akin to those faced by Weinstein, leveraged the legal system to retaliate.  They began weaponizing defamation laws to silence those who spoke out against them.

An Overview of Defamation

Defamation, a civil law tort claim, is made up of four elements: a false statement purporting to be fact; publication or communication of that statement to a third person; fault amounting to at least negligence; and damages (or some harm has been caused to the reputation of the person or entity who is the subject of the statement).  Defamation is an umbrella term, encompassing the “twin torts” of libel and slander.  Libel refers to written words, while slander refers to spoken words.

The First Amendment states, “Congress shall make no law . . . abridging the freedom of speech.”  Since the Amendment’s ratification in 1791, the freedom of speech has stood as a cornerstone of American society, empowering Americans with the right to express themselves openly and participate in robust debate.  It is this value and Constitutional text that has consistently upheld a wide variety and “classes” of speech, safeguarding diverse viewpoints and voices.

Due to the high value our society places on freedom of speech, defamation lawsuits can be particularly difficult to win and take years to resolve.  In a defamation lawsuit, the plaintiff bears the burden of proving the elements of the claim, which, must be proved under a preponderance of the evidence standard (“more likely than not”).  If the alleged defamation concerns a public figure, like many of those involved in the #MeToo movement, the bar to winning a defamation claim climbs even higher.  While this may appear as a risky endeavor, numerous powerful men accused of misconduct possess substantial resources at their disposal.  Consequently, resorting to legal action to silence their accusers became a key strategic move.

“Defamation Defense”: The Accused Sue the Accusers

In October 2014, pop star Kesha filed a lawsuit against her manager and music producer, Lukasz Gowwald, also known as Dr. Luke.  In the lawsuit, Kesha accused Dr. Luke of sexual, physical, and emotional abuse.  Following the public revelation of the lawsuit, thousands of Kesha fans and supporters rallied around her.  Kesha received an outpouring of support from other famous names in the music industry, including Kelly Clarkson, Taylor Swift, Lady Gaga, and Sam Smith.  The widespread solidarity sparked the viral hashtag “#FreeKesha”, which swiftly gained momentum across various online platforms.  Dr. Luke responded almost immediately by filing a defamation suit against Kesha—a lawsuit that would rage on for nearly 10 years and finally settled in June 2023.

In November 2017, a woman named Brittany Kohler accused filmmaker Brett Ratner in a post on Facebook of sexual assault.  Ratner immediately responded by filing a defamation lawsuit against the woman.  The woman retained an attorney and deleted the post.  A few short weeks later, the LA Times released a bombshell report on six women who accused Ratner of sexual harassment or misconduct, including actresses Olivia Munn and Natasha Henstridge.  Kohler’s attorney told ABC News in an interview with Kohler that she believes Ratner’s lawsuit was an attempt by Ratner to “send a message to other women.”  The case was eventually settled outside of court.

In November 2019, NFL wide receiver Antonio Brown was accused of rape and sexual assault in a lawsuit by his former trainer, Britney Taylor.  In response to Taylor’s allegations and lawsuit, Brown became the subject of an NFL investigation.  Brown quickly countersued Taylor for defamation and interference with his NFL contracts and endorsements.  Taylor and Brown eventually reached an undisclosed settlement.

In a 2018 op-ed in the Washington Post, actress Amber Heard described experiencing domestic violence in a previous relationship with a powerful man.  Although the op-ed never named the man, Heard had previously come forward with accusations of domestic abuse while she was married to actor Johnny Depp.  Heard filed for divorce from Depp in 2016, and a judge granted her a restraining order against Depp over allegations of domestic violence.  In 2019, Depp sued Heard over the Washington Post op-ed, claiming defamation.  The publicized trial went viral on social media platforms, and Heard encountered a barrage of online ridicule and hate.  The jury eventually found Heard liable for defamation and awarded Depp $10 million in damages.  The jury also found that Depp had defamed Heard and awarded her $2 million in damages.  Heard’s team released a statement after the verdict and promised to appeal the judgment.  Heard’s team also warned the outcome would have a “chilling effect” on women who choose to speak out about abuse.

As evidenced by the cases mentioned above, defamation lawsuits wield a significant amount of power against victims.  Although the First Amendment protects a wide variety of speech, including truthful statements from victims who choose to share their stories, these lawsuits are extremely effective.  Facing a lawsuit, or even the mere threat of legal action can instill profound fear in victims.  This sentiment is especially heightened when the plaintiff is a public figure and armed with formidable legal resources and substantial financial backing.  Because of these lawsuits, many survivors are forced to recant or remove their accusations from social media as Kohler did with Ratner.  Others, like Kesha, will spend years in litigation.  TIME’S UP, a legal defense fund launched in 2018 to provide funding and legal support to low-wage and low-income people who have experienced sexual abuse at work, has awarded a total of 62 grants that directly deal with a victim who was sued for defamation after sharing their story.

A Path Forward: Anti-SLAPP Statutes

Many legislatures have noticed the growing trend of “defamation defense;” well-funded lawsuits that are not filed to win on the merits, but to put financial and public pressure on a defendant.  In response, numerous states have passed “anti-SLAPP” statutes.  “SLAPPs,” known as “strategic lawsuits against public participation,” are meritless lawsuits that are filed against those who exercise speech, press, assembly, petition, or association rights, all protected under the First Amendment.  These statutes specifically aim to discourage the filing of SLAPP suits and allow a defendant to secure a quick dismissal before substantial litigation costs kick in.  As of September 2023, 33 states and the District of Columbiahave anti-SLAPP laws.  The statutes, which, raise the threshold for proving defamation, will commonly apply broadly to suits based on a person’s exercise of speech “on a matter of public concern.”  California and Hawaii’s anti-SLAPP statutes specifically mandate that individuals who lose a defamation case must cover the defendant’s legal expenses.

Conclusion

The #MeToo movement has undeniably reshaped societal attitudes toward sexual misconduct, providing a platform for survivors to share their stories and demand accountability.  However, as demonstrated by the powerful men who have retaliated with defamation lawsuits, the path to justice remains fraught with challenges.