INDEX NO. 159710/2015

FILED: NEW YORK COUNTY CLERK 12/03/2015 05:43 PM
NYSCEF DOC. NO. 9

RECEIVED NYSCEF: 12/03/2015

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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:
SEAN PENN,
: Index No. 159710/2015
:
Plaintiff,
:
:
v.
:
:
LEE DANIELS, an individual, and
:
JOHN DOES 1-100,
:
:
Defendants.
:
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MEMORANDUM OF LAW IN SUPPORT OF LEE DANIELS’
MOTION TO DISMISS

STROOCK & STROOCK & LAVAN LLP
Counsel for Lee Daniels
180 Maiden Lane
New York, New York 10038
(212) 806-5400
– and –
Southeast Financial Center
200 South Biscayne Blvd., Suite 3100
Miami, Florida 33131
(305) 358-9900

 TABLE OF AUTHORITIES
Page(s)
Cases
600 West 115th Street Corp. v. Von Gutfeld,
80 N.Y.2d 130 (1992) ..................................................................................................... Page 11
Alianza Dominiciana, Inc. v. Luna,
229 A.D.2d 328 (1st Dep’t 1996) ................................................................................... Page 24
Alliance Network, LLC v. Sidley Austin, LLP,
43 Misc. 3d 848(Sup. Ct. N.Y. Cnty. March 20, 2014) .................................................... Page 5
Aronson v. Wiersma,
65 N.Y.2d 592 (1985) ....................................................................................................... Page 8
Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc.,
115 A.D. 128 (1st Dep’t 2014) ......................................................................................... Page 2
Baumgartner v. United States,
322 U.S. 665 (1944) ........................................................................................................ Page 18
Bergstein v. The Hollywood Reporter et al.,
Case No. 650553/2014 (Sup. Ct. N.Y. Cty. 2014).......................................................... Page 14
Biro v. Condé Nast,
883 F. Supp. 2d 441 (S.D.N.Y. 2012)............................................................................. Page 18
Biro v. Condé Nast,
963 F. Supp. 2d 255 (S.D.N.Y. 2013)............................................................................. Page 23
Bonanni v. Hearst Communications,
58 A.D.3d 1091 (3d Dep’t 2009) ............................................................................ Pages 10, 15
Bose Corporation v. Consumers Union,
466 U.S. 485 (1984) .......................................................................................................... Page 9
Brian v. Richardson,
87 N.Y.2d 46 (1995) .............................................................................................. Pages 4, 9-11
Buckley v. Littell,
539 F.2d 882 (1976) ........................................................................................................ Page 17
Cerasani v. Sony Corp.,
991 F. Supp. 343 (S.D.N.Y. 1998).......................................................................... Pages 19, 20

-i-

 Chau v. Lewis,
935 F. Supp.2d 644 (S.D.N.Y. 2014)........................................................................ Pages 6, 18
Church of Scientology Int’l v. Daniels,
992 F.2d 1329 (4th Cir. 1993) ........................................................................................ Page 25
Cobb v. Time, Inc.,
278 F.3d 629 (6th Cir. 2002) .......................................................................................... Page 19
Cohn v. National Broadcasting Co.,
50 N.Y.2d 885 (1980), cert. denied, 434 U.S. 969 (1980) ......................................... Pages 4, 8
Curtis Publishing Co. v. Butts,
388 U.S. 130 (1967) ........................................................................................................ Page 23
Deer Consumer Prods., Inc. v. Little,
No. 650823, 2011 WL 4346674 (Sup. Ct. N.Y. Cnty. Aug. 31, 2011) ............................ Page 5
Diario El Pais, S.L. v. The Nielsen Company (US), Inc.,
2008 WL 4833012 (S.D.N.Y. Nov. 6, 2008) .................................................................. Page 24
Dillon v. City of New York,
261 A.D.2d 34 (1999) ...................................................................................................... passim
DKR Soundshore Oasis Holding Fund, Ltd. v. Merrill Lynch Intl.,
80 A.D.3d 448 (1st Dep’t 2011) ....................................................................................... Page 5
Doe v. White Plains Hosp. Med. Ctr.,
No. 10 Civ. 5405, 2011 WL 2899174 (S.D.N.Y. July 8, 2011), aff’d 2012 WL
129836 (2d Cir. Jan. 18, 2012) ....................................................................................... Page 10
Duci v. Daily Gazette Co.,
102 A.D.2d 940 (3d Dep’t 1984) ................................................................................. Pages 3-4
Effie Film, LLC v. Pomerance,
909 F. Supp.2d 272 (S.D.N.Y. 2012).............................................................................. Page 20
Egiazaryan v. Zalmayev,
880 F. Supp. 2d 494 (S.D.N.Y. 2012)............................................................................. Page 14
Frechtman v. Gutterman,
115 A.D.3d 102 (1st Dep’t 2014) ..................................................................................... Page 4
Garrison v. State of Louisiana,
379 U.S. 64 (1964) ............................................................................................................ Page 4
Gertz v. Robert Welsh, Inc.,
418 U.S. 323 (1974) ......................................................................................................... passim

-ii-

 Gisel v. Clear Channel Communications, Inc.,
94 A.D.3d 1525 (4th Dep’t 2012) ................................................................................... Page 14
Goldberg v. Levine,
97 A.D.3d 725 (2d Dep’t 2012) ........................................................................................ Page 2
Grebow v. City of New York,
173 Misc. 2d 473 (1997) ........................................................................................... Pages 1, 20
Gross v. N.Y. Times Co.,
82 N.Y.2d 146 (1993) ................................................................................... Pages 9, 10, 14, 16
Guccione v. Hustler Magazine, Inc.,
800 F.2d 298 (2d Cir. 1986)............................................................................... Pages 18-19, 22
Heins v. Board of Trustees of Incorporated Village of Greenport,
237 A.D.2d 570 (2d Dep’t 1997) .................................................................................... Page 18
The Holy Spirit Association for the Unification of World Christianity v. Harper &
Row,
420 N.Y.S.2d 56 (1979) .................................................................................................. Page 11
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988)
485 U.S. 46, 51 (1988) ..................................................................................................... Page 6
Immuno AG v. Moor-Jankowski,
145 A.D.2d 114 (1st Dep’t 1989), aff’d, 77 N.Y.2d 235 (1991)
................................................................................................................................ Pages 3, 9-11
Jewell v. NYP Holdings,
23 F. Supp. 2d 348 (S.D.N.Y. 1998)............................................................................... Page 13
Jimenez v. United Federal of Teachers,
239 A.D.2d 265 (1st Dep’t 1997), app. dismissed, 90 N.Y.2d 890 (1997) .................... Page 24
Jones v. Plaza Hotel,
249 A.D. 2d 31 (1st Dep’t 1998) .................................................................................... Page 19
Kamalian v. Reader’s Digest Ass’n, Inc.,
29 A.D.3d 527 (2d Dep’t 2006) ...................................................................................... Page 14
Karaduman v. Newsday, Inc.,
51 N.Y.2d 531 (1980) ....................................................................................................... Page 2
Kipper v. NYP Holdings Co., Inc.,
12 N.Y.3d 348 (2009) ............................................................................................. Pages 23, 25

-iii-

 Konrad v. Brown,
937 N.Y.S.2d 190 (2012) ................................................................................................ Page 25
Lenz Hardware, Inc. v. Wilson,
263 A.D.2d 632 (3d Dep’t 1999) ...................................................................................... Page 5
Levin v. McPhee,
917 F. Supp. 230 (S.D.N.Y. 1996).................................................................................. Page 15
Lohan v. Fox News Network, LLC,
No. 150933/15, 2015 WL 5583940 (Sup. Ct. N.Y. Cnty. Sept. 14, 2015) ....................... Page 5
Lore v. N.Y. Racing Ass’n, Inc.,
12 Misc.3d 1159(A), 2006 WL 1408419 (Sup. Ct. Nassau Cnty. 2006) .......................... Page 2
Mann v. Abel,
10 N.Y.3d 271 (2008) .............................................................................................. Pages 10-11
Manno v. Hembrooke,
120 A.D.2d 818 (1986) ................................................................................................... Page 10
Miller v. Richman,
184 A.D.2d 191 (4th Dep’t 1992) ................................................................................... Page 12
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) .......................................................................................................... Page 4
November v. Time, Inc.,
13 N.Y.2d 175 (1963) ..................................................................................................... Page 13
Parks v. Steinbrenner,
131 A.D. 2d 60 (1st Dep’t 1987) ..................................................................................... Page 4
Red Cap Valet, Ltd. v. Hotel Nikko (USA), Inc.,
273 A.D.2d 289 (2d Dep’t 2000) .................................................................................... Page 24
Riley v. Harr,
292 F.3d 282 (1st Cir. 2002) ........................................................................................... Page 13
Rinaldi v. Holt, Rinehart & Winston, Inc.,
42 N.Y.2d 369 (1977) ............................................................................................. Pages 10, 18
Rivera v. NYP Holdings, Inc.,
16 Misc.3d 1121(A) (Sup. Ct. N.Y. Cnty, Aug. 2, 2007) ........................................ Pages 24-25
St. Amant v. Thompson,
390 U.S. 727 (1968) ............................................................................................. Pages 4, 23-24

-iv-

 State of California v. Sean Penn,
Case No. LAA31368796-01(1986) ................................................................................. Page 11
State of California v. Sean Penn,
Case No. LAX0WA00476 -01(2010) ............................................................................. Page 11
The State of Tennessee v. Sean Penn,
Case Nos. L42039 and L42040 (1985) ........................................................................... Page 11
Steinhilber v. Alphonse,
68 N.Y.2d 283 (1986) ...................................................................................................... passim
Stepanov v. Dow Jones & Co, Inc.,
120 A.D.3d 28 (1st Dep’t 2014) ................................................................................. Pages 4, 6
Themed Restaurants, Inc. v. Zagat Survey, LLC,
781 N.Y.S.2d 441 (2004) ............................................................................... Pages 9, 16, 24-25
Torain v. Liu,
No. 06 Civ 5851, 2007 WL 2331073 (S.D.N.Y. Aug. 16, 2007), aff’d, 279 F.
App’x 46 (2d Cir. 2008), at *4 ........................................................................................ Page 14
Weiner v. Doubleday & Co.,
74 N.Y.2d 586 (1989), cert. denied, 495 U.S. 930 (1990) ............................................... Page 3
Wells v. State,
130 Misc. 2d 113 (1985) ................................................................................................. Page 20
White v. Fraternal Order of Police,
707 F. Supp. 2d 579 (D.D.C. 1989), aff’d, 909 F.2d 512 (D.C. Cir. 1990) ...................... Page 8
Wynberg v. National Enquirer, Inc.,
564 F. Supp. 924 (C.D. Cal. 1982) ................................................................................. Page 23
Statutes & Other Authorities
Civil Practice Law................................................................................................................... Page 1
First Amendment ................................................................................................................... passim
Article I, Section 8, New York Constitution ......................................................................... passim
CPLR 3211(a) ................................................................................................................... Pages 1, 2
CPLR 3212............................................................................................................................ Page 20

-v-

 TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
FACTUAL BACKGROUND ..........................................................................................................2
ARGUMENT ...................................................................................................................................3
I.

II.

III.

The Complaint Fails to State a Cause of Action for Defamation. .......................................4
A.

Generally. .................................................................................................................4

B.

The Court May Consider Documentation Omitted from Penn’s Complaint.
and Related Extrinsic Evidence ..............................................................................5

C.

The Court Must Now Decide: Is the Challenged Statement Reasonably
Susceptible to a Defamatory Meaning. ....................................................................5

The Challenged Statement Is Not Reasonably Susceptible to a Defamatory
Meaning. ..............................................................................................................................6
A.

Unpleasant, Embarrassing, Controversial, Offensive Words Are Not
Defamation. ..............................................................................................................6

B.

The Challenged Statement Cannot Be Reasonably Interpreted as Implying
that Penn is Guilty of Ongoing, Continuous Violence against Women. .................7

The Challenged Statement is Opinion and, Thus, Not Actionable. .....................................8
A.

Opinions Are Constitutionality Protected. ...............................................................8

B.

The Challenged Statement Constitutes Non-Actionable Opinion. ........................11

C.

The Challenged Statement Is Incapable of Being Proven True or False. ..............12

D.

The Full Context of the Challenged Statement Signals an Opinion. .....................14

E.

The Broader Social Context of the Challenged Statement Signals an
Opinion. .................................................................................................................16

IV.

A Quarter Century of Regular Media Coverage on Penn’s Alleged Domestic
Abuse Vitiates Any Reasoned Suggestion that the Challenged Statement Could
Have Impaired Penn’s Reputation. ....................................................................................18

V.

The Complaint Fails to Plead Actual Malice. ....................................................................23

CONCLUSION ..............................................................................................................................26

-vi-

 Defendant, Lee Daniels (“Daniels”), respectfully submits this Memorandum of Law in
Support of his Motion to Dismiss the Complaint filed by Sean Penn (“Penn”) pursuant to Civil
Practice Law and Rules (“CPLR”) 3211(a)(1) and 3211(a)(7).
PRELIMINARY STATEMENT
With fame, money and high-priced legal counsel, Penn has the power to buy most things.
Fortunately for Daniels, the First Amendment is not for sale. It protects Daniels and others from
lawsuits like this one, financially-draining attacks brought to punish free speech exercised to
Penn’s chagrin. Ostensibly filed to protect his name from those who “aggrandize themselves or
their projects at his expense,” Penn’s Complaint is merely a blunt force instrument wielded in an
attempt to control the narrative of his life1 and to expunge alleged misdeeds sensationalized by
the press for decades (or, as a neatly summarized by a recent headline: “Sean Penn Forgets We
All Know He Beat Madonna and Sues Lee Daniels for Defamation”).2 Worse yet, the Complaint
attempts to silence Daniels’ honestly-held opinion, a contribution to the marketplace of ideas
voiced during this nation’s agonizing debate about racial disparity and domestic violence. The
First Amendment abhors attempts to chill speech on hot topics.
While Penn may have personally experienced the challenged statement as offensive, he
must now demonstrate that the statement is reasonably susceptible to a defamatory meaning. He
has not, and cannot. The challenged statement is constitutionally protected opinion, and New
York courts have repeatedly emphasized the need to summarily reject defamation claims brought
1

The Complaint evidences this self-serving agenda, reading like a press release and devoting
most of its space to rattling off Penn’s humanitarian acts. (See Compl. at ¶¶ 10-17, attached as
Exhibit A to the Affirmation of James Sammataro, Esq. [“Sammataro Aff.”]). Moreover, in a
moment of candor, the Complaint reveals its true (and impermissible) purpose: to “deter” others
from engaging in debate regarding Penn. (Id. at ¶ 1) (emphasis added).
2

www.clutchmagonline.com/2015/09/sean-penn-forgets-we-all-know-he-beat-madonna-andsues-lee-daniels-for-defamation. See Sammataro Aff., Exhibit B at B-1; Grebow v. City of New
York, 173 Misc. 2d 473, 479 (1997) (taking judicial notice of a newspaper article).
Page   1

 to bully those who dare exercise their constitutional right of free speech. “The threat of being put
to the defense of a lawsuit … may be as chilling to the exercise of First Amendment freedoms as
the fear of the outcome of the lawsuit itself.”3 In that it is an assault on the First Amendment and
New York’s Constitution, Penn’s Complaint must be dismissed with prejudice.
FACTUAL BACKGROUND
Penn complains about an opinion Daniels allegedly made during an interview with The
Hollywood Reporter and published in the article “Empire’s ‘Batshit Crazy’ Behind-the-Scenes
Drama: On the Set of TV’s Hottest Show” (Lacey Rose, The Hollywood Reporter, September 16,
2015) (“Article”). (See Ex. A at ¶ 19; Sammataro Aff., Exhibit C).4 The Article references
rumors that Terrence Howard, an African American who plays Empire’s male lead, Lucious
Lyon, may have his screen time “scal[ed] back because of his recent divorce drama and
numerous prior allegations of domestic abuse” (See Sammataro Aff., Ex. C-13) (emphasis
added). The pertinent portion of the Article provides: “The embattled actor has, however,
reduced his press availability, presumably fearing questions will shift toward his offscreen drama
as they did in a recent Rolling Stone profile. His co-stars have been advised not to comment on
the ongoing saga, but Daniels can’t help himself.” (Id. at C-14).
3

Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 545 (1980).

4

Instead of attaching the Article to his Complaint, Penn – tellingly – instead plucks the
challenged statement from its context. The Article as well as other documentary evidence are
attached as exhibits to the accompanying Sammataro Affirmation, all of which are properly
considered under CPLR 3211(a). See Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp.,
Inc., 115 A.D. 128, 135 (1st Dep’t 2014) (affirming dismissal on a CPLR 3211(a) motion to
dismiss where “the defendant’s evidence establishes that the plaintiff has no cause of actions”);
Goldberg v. Levine, 97 A.D.3d 725 (2d Dep’t 2012) (dismissing the case pursuant to CPLR
3211(a)(1) and (7), given that the documentary evidence submitted by the defendant defeated the
plaintiff’s defamation claim); Lore v. N.Y. Racing Ass’n, Inc., 12 Misc.3d 1159(A), 2006 WL
1408419, at *3 (Sup. Ct. Nassau Cnty. 2006) (on a motion to dismiss, courts may consider
“documents that are integral to plaintiff’s claims, even if not explicitly incorporated by
reference” in its complaint).
Page   2

 “That poor boy,” [Daniels] says, fiercely protective of his actor. He then alludes
to other actors who have been the subject of domestic abuse allegations in the
past. “[Terrence] ain’t done nothing different than Marlon Brando or Sean Penn,
and all of a sudden he’s some f—in’ demon … That’s a sign of the time, of race,
of where we are right now in America” (emphasis added). (“Challenged
Statement”). (Id. at C-2, C-14).
For these thirty-eight (38) quoted words, Penn claims damages in excess of
$10,000,000.00.
ARGUMENT
To protect public debate, New York Courts have long-favored dismissal of defamation
claims at the earliest possible stage of the proceedings. In such actions, the court must, at the
dismissal stage, determine if the alleged defamatory statement is actionable as a matter of law.
“Whether the contested statements are reasonably susceptible of a defamatory connotation is in
the first instance a legal determination for the court.” Weiner v. Doubleday & Co., 74 N.Y.2d
586, 592 (1989), cert. denied, 495 U.S. 930 (1990); Duci v. Daily Gazette Co., 102 A.D.2d 940,
940 (3d Dep’t 1984) (“In determining whether a published article is libelous, it is the role of the
court to decide, as a matter of law, whether the words complained of are susceptible of the
defamatory meaning ascribed to them.”).
Dispositive motions are recognized to hold particular value in defamation cases, so as not
to protract litigation through discovery and thereby chill the exercise of constitutionally protected
freedoms.

To unnecessarily delay the disposition of a defamation action “is not only to

countenance waste and inefficiency but to enhance the value of such actions as instruments of
harassment and coercion inimical to the exercise of First Amendment rights.” Immuno AG v.
Moor-Jankowski, 145 A.D.2d 114, 128 (1st Dep’t 1989), aff’d, 77 N.Y.2d 235 (1991).
Consequently, laxity is not permitted, as loose rules and casual judicial review threaten
the enjoyment of First Amendment freedoms. Mindful of this constitutional obligation, New

Page   3

 York courts have not hesitated to serve their gate-keeping function by dismissing, with prejudice,
actions premised on statements not susceptible of a defamatory meaning. See Brian v.
Richardson, 87 N.Y.2d 46, 51 (1995); Stepanov v. Dow Jones & Co, Inc., 120 A.D.3d 28, 40 (1st
Dep’t 2014); Frechtman v. Gutterman, 115 A.D.3d 102, 108 (1st Dep’t 2014); Dillon v. City of
New York, 261 A.D.2d 34, 42 (1999) (reversing order with costs); Steinhilber v. Alphonse, 68
N.Y.2d 283, 294 (1986); Duci, 102 A.D.2d. at 940 (reversing order); Parks v. Steinbrenner, 131
A.D. 2d 60, 66 (1st Dep’t 1987); Cohn v. National Broadcasting Co., 50 N.Y.2d 885, 887
(1980), cert. denied, 434 U.S. 969 (1980) (affirming dismissal with costs).
I.

The Complaint Fails to State a Cause of Action for Defamation.
A.

Generally.

To state a cause of action for defamation under New York law, a plaintiff must plead: (1)
a false statement of fact; (2) published to a third party without privilege or authorization; (3) with
fault amounting to at least negligence; and (4) that the plaintiff suffered damages as a result of
the publication; special harm or defamation per se. See Dillon, 261 A.D.2d at 38; Stepanov, 120
A.D.3d at 34.
A self-described “American icon” and admitted public figure (see Sammataro Aff., Ex. A
at ¶¶ 1, 10), Penn must additionally plead “actual malice.” New York Times Co. v. Sullivan, 376
U.S. 254 (1964). This is a heavy burden. Penn must show with convincing clarity that Daniels
made the alleged defamatory statements with “knowledge that [the statement] was false or with
reckless disregard of whether it was false or not,” id. at 280 or, alternatively, that Daniels made
the statement with a “high degree of awareness of…probable falsity,” Garrison v. State of
Louisiana, 379 U.S. 64, 74 (1964), or “in fact entertained serious doubts as to the truth of his
publication.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

Page   4

 B.

The Court May Consider Documentation Omitted from Penn’s Complaint,
and Related Extrinsic Evidence.

A motion to dismiss founded upon documentary evidence may be granted “ … where the
documentary evidence utterly refutes the complaint’s factual allegations, conclusively
establishing a defense as a matter of law.” DKR Soundshore Oasis Holding Fund, Ltd. v. Merrill
Lynch Intl., 80 A.D.3d 448, 449-450 (1st Dep’t 2011) (quoting Goshen v. Mutual Life Ins. Co. of
N.Y., 98 N.Y.2d 314, 326 (2002)). See also, Alliance Network, LLC v. Sidley Austin, LLP, 43
Misc. 3d 848, 852, 873 n.1(Sup. Ct. N.Y. Cnty. March 20, 2014) (“On a motion to dismiss, the
Court may consider documents referenced in a complaint, even if the pleading fails to attach
them.”); Deer Consumer Prods., Inc. v. Little, No. 650823, 2011 WL 4346674, at * 4 (Sup. Ct.
N.Y. Cnty. Aug. 31, 2011) (same); 6A Carmondy-Wait 2d, Cyclopedia of New York Practices
with Forms § 38:161 (2011) (“on a motion to dismiss the complaint for failure to state a cause of
action, the court is not limited to a consideration of the pleading itself, but may consider extrinsic
evidence submitted by the parties in disposing of the motion.”).
“The major change intended by the CPLR [ ] was to enable the defendant to use affidavits
and other extrinsic proof, unbound by the face of the pleading and therefore able to go behind
[the pleading] and challenge any factual allegation on which it depends.” Lohan v. Fox News
Network, LLC, No. 150933/15, 2015 WL 5583940 (Sup. Ct. N.Y. Cnty. Sept. 14, 2015).
C.

The Court Must Now Decide: Is the Challenged Statement Reasonably
Susceptible to a Defamatory Meaning.

“Where a plaintiff alleges that statements are false and defamatory, the legal question for
the court on a motion to dismiss is whether the contested statements are reasonably susceptible
of a defamatory connotation.” Lenz Hardware, Inc. v. Wilson, 263 A.D.2d 632, 633 (3d Dep’t
1999) (emphasis added) (internal citation omitted).

Page   5

 In making this determination, the court must examine the statement in depth. The court
is required to evaluate both the content and context, and to give the disputed language a fair
reading in the context of the publication as a whole. Stepanov, 120 A.D.3d at 34 (“On a motion
to dismiss a defamation claim, the court must decide whether the statements, considered in the
context of the entire publication, are reasonably susceptible of a defamatory connotation, such
that the issue is worthy of submission to a jury.”). The court is to look at what was explicitly
stated, as well as what insinuation and implication can reasonably be drawn from the
communication. In considering the statement, the courts will not go to extremes, but will instead
construe the language in the same way that the reading public, acquainted with the parties and
the subject matter would understand the statement. See also Dillon, 261 A.D.2d at 34 (if in
understanding of the average reader, the words are “not reasonably susceptible of a defamatory
meaning, they are not actionable and cannot be made so by a strained or artificial construction”).
If a statement is not reasonably susceptible to the defamatory meaning ascribed by the
plaintiff, it is not actionable as a matter of law.
II.

The Challenged Statement Is Not Reasonably Susceptible to a Defamatory Meaning.
A.

Unpleasant, Embarrassing, Controversial, Offensive Words Are Not
Defamation.

The mere fact that a statement is unpleasant, embarrassing, controversial, or offensive to
a person does not make it defamatory or legally actionable. See Chau v. Lewis, 935 F. Supp. 2d
644, 657 (S.D.N.Y. 2014) (“Not every unpleasant or uncomplimentary statement [ ] is
defamatory.”). See also, Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988) (the First
Amendment affords the right to criticize public figures, “[s]uch criticism, inevitably, will not
always be reasoned or moderate; public figures as well as public officials will be subject to
vehement, caustic and sometimes unpleasantly sharp attacks.”) (internal citation omitted).

Page   6

 B.

The Challenged Statement Cannot Be Reasonably Interpreted as Implying
that Penn is Guilty of Ongoing, Continuous Violence against Women.

Penn pleads that the Challenged Statement was “egregious” on “several levels”
(Sammataro Aff., Ex. A at ¶ 3), but offers only irrelevant characterizations and strained
interpretations.
1. Penn Alleges Characterizations Irrelevant to the Defamation Analysis.
Penn asserts that the Challenged Statement condones Howard’s purported misconduct
and improperly invokes “two of the greatest actors and humanitarians of our time,” [Marlon]
Brando and Penn, for the misguided purpose of promoting Empire and bolstering Daniels’ brand.
(Id. at ¶¶ 1, 3). A statement that condones purported misconduct does not make a defamation
claim. A statement that invokes another name to purportedly promote a television show is also
not defamatory. Consequently, Penn’s allegations that the Challenged Statement condones or
promotes are irrelevant to this defamation analysis and should be disregarded by this Court.
2. Penn Unreasonably Exaggerates the Challenged Statement to Mean that
“Penn is guilty of ongoing, continuous violence against women.”
Daniels, claims Penn, “falsely asserted and/or implied that Penn is guilty of ongoing,
continuous violence against women.” (Id. at ¶ 2) (emphasis added). The Challenged Statement
cannot be fairly read to convey the alleged defamatory meaning that Penn attributes to it.
The Challenged Statement contains grammar that unequivocally references past action:
“[Terrence] ain’t done nothing different than Marlon Brando or Sean Penn.” (Sammataro Aff.,
Ex. C-2, C-14). “Done” is not “doing.” The plain meaning of the word “done” cannot denote or
imply “on-going, continuous” activity.
Further, the Challenged Statement mentions public figures Brando and Penn in the exact
same breadth in the exact same way: “[Terrence] ain’t done nothing different than Marlon
Brando or Sean Penn.” (Id.). Because Brando and Penn are mentioned the same way, such

Page   7

 mentions must be characterized the same way. Brando died in 2004. (See Sammataro Aff.,
Exhibit D at D-1, D-3). Can Penn reasonably allege that Brando is doing anything in an “ongoing, continuous” fashion, too?

Impossible.

Therefore, the Court cannot fairly read the

Challenged Statement to imply Penn was doing anything in an “on-going, continuous” fashion.
Read literally or naturally with the understanding of the average reader, the Challenged
Statement neither states, insinuates, implies or is otherwise reasonably susceptible to an
interpretation that Penn is guilty of on-going, continuous violence against women. See White v.
Fraternal Order of Police, 707 F. Supp. 2d 579, 589 n. 12 (D.D.C. 1989) (under defamation law
“what meaning a communication is capable of bearing” is a very different inquiry from
identifying “the inferences that can reasonably be drawn from it”) (emphasis added), aff’d, 909
F.2d 512 (D.C. Cir. 1990). Penn’s strained interpretation unreasonably attempts to manufacture
defamation where none exists. See Dillon, 261 A.D.2d at 38 (“[c]ourts will not strain to find
defamation where none exists.”); Cohn, 50 N.Y.2d at 887 (same); Aronson v. Wiersma, 65
N.Y.2d 592, 594 (1985) (courts should not strain to interpret statements as defamatory).
This should be the beginning and end of the Court’s analysis, as it mandates dismissal of
the Complaint. Should the Court continue the analysis, then the Complaint should be dismissed
for three additional, independent and dispositive reasons: (1) the Challenged Statement is a
constitutionally-protected opinion (section III); (2) three decades of on-going public discussion
about Penn’s alleged domestic abuse have made Penn libel-proof on the topic (section IV) and
(3) Penn failed to plead actual malice with the requisite specificity (section V).
III.

The Challenged Statement is Opinion and, Thus, Not Actionable.
A.

Opinions Are Constitutionality Protected.

The Challenged Statement is immunized by the First Amendment and the New York
Constitution. “Under the First Amendment there is no such thing as a false idea. However
Page   8

 pernicious an opinion may seem, we depend for its correction not on the conscience of judges
and juries but on the competition of other ideas.” Gertz v. Robert Welsh, Inc., 418 U.S. 323, 339340 (1974). In Milkovich v. Lorain Journal Co., the United States Supreme Court held that a
“statement of opinion relating to matters of public concern which does not contain a provably
false factual connotation will receive full constitutional protection,” so long as such a statement
does not “reasonably impl[y] false and defamatory facts.” 497 U.S. 1, 20 (1990). The Court has
repeatedly emphasized that the constitutional protection of expression of opinion is necessary to
ensure that “public debate will not suffer from a lack of ‘imaginative expression’ or ‘rhetorical
hyperbole,’ which has traditionally added much to the discourse of our Nation.” Id. See also,
Bose Corporation v. Consumers Union, 466 U.S. 485, 503-04 (1984) (“The First Amendment
presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty –
and thus a good unto itself – but also is essential to the common quest for truth and the vitality of
society as a whole.”).
The New York State Constitution goes even further in its protection of opinion,
embracing “… a test for determining what constitutes a non-actionable statement of opinion that
is more flexible and is decidedly more protective of the ‘the cherished constitutional guarantee of
free speech.’” Gross v. N.Y. Times Co., 82 N.Y.2d 146, 152 (1993) (emphasis added) (citing
Immuno, 77 N.Y.2d at 256). See also, Themed Restaurants, Inc. v. Zagat Survey, LLC, 781
N.Y.S.2d 441, 449 (2004) (“… the free speech guarantee of the New York State Constitution is
even more stringent than that of the First Amendment.”).
Under New York law, “falsity is a sine que non of a libel claim and since only assertions
of fact are capable of being proven false … a libel action cannot be maintained unless it is
premised on published assertions of fact.” Brian, 87 N.Y.2d at 51. “Opinions, false or not,

Page   9

 libelous or not, are constitutionally protected and may not be the subject of private damage
actions,” irrespective of how vituperative, distasteful or unreasonable those opinions might be.
Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 380 (1977); Steinhilber, 68 N.Y.2d at
289. See also Mann v. Abel, 10 N.Y.3d 271, 276 (2008) (“Expressions of opinion, as opposed to
assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of
an action for defamation.”).
Consequently, to be actionable, the Challenged Statement must reasonably be understood
to assert a fact that is provably false and defamatory, as opposed to conveying an opinion.
Whether a particular statement constitutes fact or opinion is a threshold question of law for the
court to decide at the dismissal stage. See Gross, 82 N.Y.2d at 152-53; Manno v. Hembrooke,
120 A.D.2d 818, 819 (1986); Bonanni v. Hearst Communications, 58 A.D.3d 1091, 1092 (3d
Dep’t 2009) (“On a motion to dismiss in a libel action, the court must determine whether the
plaintiff sufficiently alleged false defamatory statements of fact rather than nonactionable
statements of opinion.”) (emphasis in original) (citation omitted). In making this determination,
courts must consider:
(1) whether the specific language in issue has a precise meaning which is readily
understood; (2) whether the statements are capable of being proven true or false;
and (3) whether either the full context of the communication in which the
statement appears or the broader social context and surrounding circumstances are
such as to signal ... readers or listeners that what is being read or heard is likely to
be opinion, not fact.
Brian, 87 N.Y.2d at 51 (quoting Gross, 82 N.Y.2d at 153); Steinhilber, 68 N.Y.2d at 292.
This standard requires more than consideration of whether the specific words used can
reasonably be understood to convey a false fact. Immuno AG, 77 N.Y.S.2d at 255-56; Doe v.
White Plains Hosp. Med. Ctr., No. 10 Civ. 5405, 2011 WL 2899174, at *3 (S.D.N.Y. July 8,
2011) (“objective statements that could be proven true or false” may nonetheless be understood

Page   10

 as an expression of opinion), aff’d 2012 WL 129836 (2d Cir. Jan. 18, 2012). Rather, courts
must consider whether the words, in full context, would reasonably be understood as asserting a
fact about the plaintiff rather than expressing a point of view. Mann, 10 N.Y.3d at 276.
This test requires that the court consider the content of the communication as a whole, its
tone and apparent purpose, as well as to consider the broader social context to “determine
whether the reasonable reader would have believed that the challenged statements were
conveying facts about the libel plaintiff.” Brian, 87 N.Y.2d at 51; Immuno, 77 N.Y.S.2d at 254
Steinhilber, 68 N.Y.2d at 295 (“even apparent statements of fact may assume the character of
statements of opinion” in context of “public debate”) (citations omitted). This holistic approach
was consciously designed to “assure that the cherished constitutional guarantee of free speech is
preserved”. 600 West 115th Street Corp. v. Von Gutfeld, 80 N.Y.2d 130, 145 (1992).
B.

The Challenged Statement Constitutes Non-Actionable Opinion.

Penn pleads that the Challenged Statement defames him because it “falsely equates Penn
with Howard.” (Sammataro Aff., Ex. A at ¶ 3). Penn argues that the comparison is unfair
because “while [Penn] has certainly had several brushes with the law, Penn (unlike Howard) has
never been arrested, much less convicted, for domestic violence … Nor has Penn admitted to
slap[ping] a woman or abusing others (as Howard also reportedly admitted, reportedly asserting
that he was acting in self-defense).” (Id.).5
By admitting that the Challenged Statement is a comparison, Penn sabotages his entire
Complaint. A comparison is invariably an opinion incapable of sustaining a defamation claim.
Indeed, a New York court has already ruled as such in The Holy Spirit Association for the
5

Penn’s “brushes with the law” include multiple arrests for violent acts, including assaulting a
photographer for which he served 33 days in jail. See, e.g., State of California v. Sean Penn,
Case No. LAX0WA00476-01(2010); State of California v. Sean Penn, Case No. LAA3136879601(1986); The State of Tennessee v. Sean Penn, Case Nos. L42039 and L42040 (1985).
Page   11

 Unification of World Christianity v. Harper & Row, 420 N.Y.S.2d 56 (1979). There, the plaintiff
church brought a libel action against the author and publisher of a book which drew parallels
between Nazism and present day occult groups including the Unification Church. Id. at 58. In
dismissing the complaint, the court ruled: “Clearly, the comparison of one organization with
another and pointing out similarities between them expresses the opinion of the person making
the comparison.” Id. at 59. See also, Miller v. Richman, 184 A.D.2d 191, 193 (4th Dep’t 1992)
(affirming the grant of dismissal, as statements criticizing plaintiff and “comparing her
unfavorably to other[s]” are non-actionable expressions of opinion).
Because Penn has already conceded the comparison point, the Challenged Statement is
not defamatory as a matter of law and this Court should dismiss the Complaint.
C.

The Challenged Statement Is Incapable of Being Proven True or False.
1. The Challenged Statement and Article Are Conspicuously Devoid of a
Single Assertion of Fact Regarding Either Howard or Penn.

Penn argues that, by comparing him to Howard, the Challenged Statement “both
expressly and by implication … falsely and outrageously imputes serious criminal behavior –
repeated violence against women – to Penn.” (Sammataro Aff., Ex. A at ¶¶ 3, 28). Yet, none of
the alleged facts regarding Howard which Penn attempts to introduce and rely upon in ascribing
a defamatory meaning to the Challenged Statement actually appear in the Article.
In fact, Howard’s personal travails, including his recent divorce and “numerous prior
allegations of domestic abuse,” amount to nothing more than a passing reference in a splashy
fifteen page article about Empire. (See Sammataro Aff., Ex. C-13). There is no analysis of
Howard’s actions beyond that he has turned into a “gossip-world piñata” (Id. at C-5).

The

Article is deliberate in noting that the allegations against Howard are just that, allegations.
The purported facts that Penn seeks to interject would only be available to the reader who

Page   12

 was willing to put down The Hollywood Reporter and conduct an independent investigation into
Howard and Penn’s alleged criminality and the nuances of the legal system. See November v.
Time, Inc., 13 N.Y.2d 175, 178-79 (1963) (“[T]he words are to be construed not with the close
precision expected from lawyers and judges but as they would be read and understood by the
public to which they are addressed”) (emphasis in original); Jewell v. NYP Holdings, 23 F. Supp.
2d 348, 361 (S.D.N.Y. 1998) (“It is the duty of the court, in an action for libel, to understand the
publication in the same manner that others would naturally do.”).6
Because the Challenged Statement – like the Article itself – is devoid of any provably
false factual assertion regarding either Howard or Penn, there is no readily verifiable statement.
Further, in that Penn inappropriately embellishes the Challenged Statement with facts not
mentioned in the Article (while simultaneously excising the Brando reference), the Challenged
Statement is not defamatory as a matter of law and subject to dismissal.
2. A Suggestion of Criminality Does Not Transform a Statement of Opinion
into an Objectively Verifiable Fact.
That Penn has purportedly neither admitted to, nor been convicted of, domestic assault
does not make the Challenged Statement defamatory. See Riley v. Harr, 292 F.3d 282, 289 (1st
Cir. 2002) (“a provably false statement is not actionable if it is plain that the speaker is
expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than
claiming to be in possession of objectively verifiable facts …”) (internal citation omitted).
Indeed, there is robust body of case law which provides that provocative rhetoric – even
statements that, read literally, allege a crime – cannot properly form the basis of a defamation
claim when it is understood to be expressing a point of view. Assertions that individuals have
committed war crimes, cold-blooded murder, negligent homicide and pedophilic acts have been
6

The average reader is unskilled in specifics of the criminal system and would likely view Ray
Rice as being guilty of domestic violence, though he was not convicted of domestic abuse.
Page   13

 held non-actionable when, in context, they are properly understood as mere, non-actionable
rhetorical hyperbole or vigorous epithets. See Gross, 82 N.Y.2d at 155. See e.g., Egiazaryan v.
Zalmayev, 880 F. Supp. 2d 494, 510-11 (S.D.N.Y. 2012) (letters falsely suggesting that plaintiff
was “responsibl[e] for war crimes” and “contribut[ed] human rights violations” were expressions
of opinion); Gisel v. Clear Channel Communications, Inc., 94 A.D.3d 1525, 1526 (4th Dep’t
2012) (dismissing defamation claim against a defendant for calling a person acquitted of
criminally negligent homicide “a cold-blooded murderer”); Torain v. Liu, No. 06 Civ 5851, 2007
WL 2331073 (S.D.N.Y. Aug. 16, 2007), aff’d, 279 F. App’x 46 (2d Cir. 2008), at *4 (rejecting
the argument that accusations of criminal activity are not constitutionally protected and finding
that, in context, “no reasonable listener … would conclude that defendant was accusing plaintiff
of committing an act of pedophilia”); Kamalian v. Reader’s Digest Ass’n, Inc., 29 A.D.3d 527,
527-28 (2d Dep’t 2006) (statement that doctor was guilty of “deadly mistakes” protected as
opinion).
Contrary to Penn’s suggestion, “there is simply no special rule of law making criminal
slurs actionable regardless of whether they are asserted as fact or opinion.” Gross, 82 N.Y.2d at
155. “In all cases, whether the challenged remark concerns criminality or some other defamatory
category, the courts are obliged to consider the communication as a whole …” Id.

Here, the

Challenged Statement does not accuse Penn of any specific act and is devoid of any statement
that is either precise or provable enough to qualify as an assertion of fact.
D.

The Full Context of the Challenged Statement Signals an Opinion.

The Hollywood Reporter is “a leading source of news for and about the entertainment
industry.” (See Bergstein v. The Hollywood Reporter et al., Case No. 650553/2014 (Sup. Ct.
N.Y. Cty. 2014). It has a specialized readership and reports industry trends, not rigorous or
comprehensive criminal analysis. The Article is about Empire’s “outsized success,” “back stage
Page   14

 drama” and how, in becoming a “full-blown cultural phenomenon” the program has dismantled
“the decades mold of primetime programming … that a show by black people, about black
people and for black people could, in fact, appeal to other people, too.”7 (See Sammataro Aff.,
Ex. C-3, C-4).
Against this backdrop, the Article provides countless contextual disclaimers regarding the
Challenged Statement, including that Daniels periodically “stir[s] things up,” “push[es]
provocative ideas,” and is “fiercely protective [of his actors].” The Article also immediately
forewarns that Daniels “can’t help himself”. (Id. at pp. C-8, C-14).

This prefatory language

unequivocally signals to the reader that Daniels is not a disinterested observer stating facts, but
rather speaking from an obvious subjective point of view. That Daniels “can’t help himself”
further signifies that the Challenged Statement is a heat-of-the-moment, personal view rife with
inherent bias, not an assertion of established fact.

Read contextually, it is clear that the

Challenged Statement is the product of emotion, not factual deliberation or investigation.
Additionally, the Article unequivocally notes that Daniels is alluding to other prominent
actors “who have been the subject of domestic abuse allegations in the past.” (Id. at C-14). This
is a dispositive qualifier as it underscores that the Challenged Statement is not based upon any
undisclosed facts, or that Daniels is either privy to, or aware of, specific facts (about either Penn
or Brando) unknown to the reader. See Bonanni, 58 A.D.3d at 1093 (“Given this contextual
background, we conclude … that a reasonable reader would understand the statements defendant
made about plaintiff as mere allegations to be arbitrated rather than as facts” (emphasis in
original) (internal citations omitted). See also Levin v. McPhee, 917 F. Supp. 230, 240 (S.D.N.Y.

7

While irrelevant, the suggestion that the Challenged Statement was made to promote Empire is
belied by the heavy volume of unsolicited media coverage that Empire receives, including a
fifteen page spread in The Hollywood Reporter. (See Ex. C).
Page   15

 1996) (“[I]f a statement of opinion either discloses the facts on which it is based or does not
imply the existence of undisclosed facts, the opinion is not actionable”) (citing Gross, 82 N.Y.2d
at 154); Themed Restaurants, 781 N.Y.S.2d at 447 (a pure opinion “does not imply that it is
based upon undisclosed facts”).8
Moreover, the Challenged Statement references Howard as a “poor boy,” or a “f—in’
demon”. (See Sammataro Aff., Ex. C-14). Nobody can reasonably interpret these statements as
assertions of fact, as if Daniels were calling Howard impoverished or demonic. The use of lusty
language and rhetorical flourish further underscore that the Challenged Statement is an
expression of opinion. See Dillon, 704 N.Y.S.2d at 5 (“Loose, figurative or hyperbolic
statements, even if deprecating the plaintiff, are not actionable.”); Steinhilber, 68 N.Y.S.2d at
294 (epithets, fiery rhetoric and hyperbole signal advocacy). See also, Treppel, No. 03 Civ. 3002,
2004 WL 2339759, at *12 (S.D.N.Y. 2004) (stating that “an opinion may be offered with such
excessive language that a reasonable audience may not fairly conclude that the opinion has any
basis in fact.”).
Because the context around the Challenged Statement signals that Daniels was expressing
a subjective viewpoint, Daniels used hyperbolic epithets and Daniels did not imply that the
Challenged Statement was based on undisclosed facts, the Alleged Statement is not defamatory
as a matter of law and this Court should dismiss the Complaint.
E.

The Broader Social Context of the Challenged Statement Signals an Opinion.

The final factor, “the broader social context,” confirms that the Challenged Statement
conveys Daniels’ personal view of media bias and the double-standard applied to men of color.
The Article’s principal focal points are the need for diversified voices in Hollywood, and
8

Had, for example, Daniels stated, “I’ve read the police reports and spoken to the pertinent law
enforcement officials,” then the Challenged Statement would have arguably graduated from one
of pure opinion to a mixed opinion.
Page   16

 Empire’s unprecedented willingness to provide a much needed black perspective. (See
Sammataro Aff., Ex. C-6, C-7, C-8). Daniels’ statement that Howard’s receipt of imbalanced
media coverage is a “sign of the time, of race, of where we are right now in America” is a
paradigmatic expression of an opinion, one in which the First Amendment fiercely protects. (Id.
at C-14).
The issue of race, both in Hollywood and in America, remains a sensitive subject which
elicits disparate views and raging debate. Recent events have sparked heated national dialogue:
the media’s depiction of the Ferguson, Missouri riots; Eric Garner’s death and the attendant “I
Can’t Breathe” protests and the Black Lives matter movement; Viola Davis’ Emmy win and the
invocation of Harriet Tubman in her acceptance speech. See Michael Gold, The 2015 Emmy
Awards, The New York Times, September 20, 2015 (noting the impact of Ms. Davis becoming
the first African-American to win an Emmy Award for best actress, and the import of the award
within the larger context of diversity in Hollywood). (Sammataro Aff., Exhibit E at E-1, E-2).
The Challenged Statement allows the reader to form his own conclusion as to whether
race plays a role in the reporting of Howard’s alleged conduct and to assess the merits of
Daniels’ espoused opinion. The appropriate inquiry is, thus, not whether Challenged Statement
is popular or offensive, but whether it bears on a topic of social relevance. Indeed, the First
Amendment defends what is offensive, as what is not offensive does not need defending. This is
all the more true when a public figure is embroiled in the conversation. The Constitution
contemplates “a bias toward unfettered speech at the expense, perhaps, of compensation for harm
to reputation, at where a public figure and a topic of enormous public interest, going to the heart
of political discourse, is concerned.” Buckley v. Littell, 539 F.2d 882, 889 (1976) (citing Gertz,
418 U.S. at 339-43).

Page   17

 Further, even if Daniels’ opinion that there is no meaningful difference between Howard,
Brando and Penn’s actions were erroneous, it is nonetheless a viewpoint that is safeguarded.
“Erroneous opinions are inevitably put forward in free debate but even the erroneous opinion
must be protected so that debate on public issues may remain robust and unfettered and
concerned individuals may have the necessary freedom to speak their conscience.” Rinaldi, 366
N.E.2d at 1306. See Baumgartner v. United States, 322 U.S. 665, 673-74 (1944) (“One of the
prerogatives of American citizenship is the right to criticize public men and measures”).
Whether Daniels is right or not, he has the right to express his opinion, and Penn cannot
punish Daniels for voicing his honestly held views.
IV.

A Quarter Century of Regular Media Coverage on Penn’s Alleged Domestic Abuse
Vitiates Any Reasoned Suggestion that the Challenged Statement Could Have
Impaired Penn’s Reputation.
Under New York law, truth is an absolute and unqualified defense to defamation. See

Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 301 (2d Cir. 1986) (“it is fundamental that
truth is an absolute, unqualified defense to a civil defamation action”) (internal citation omitted).
Whether a statement is true or false is not a binary assessment. Some statements are deemed
non-actionable because they are completely true. See also Heins v. Board of Trustees of
Incorporated Village of Greenport, 237 A.D.2d 570, 570-71 (2d Dep’t 1997) (granting motion to
dismiss where documentary evidence established truth of alleged defamatory statements). Other
statements are held to be “substantially true,” and non-actionable despite minor inaccuracies. It
is sufficient if the substance of the charge is proved true irrespective of any inaccuracy in the
details. See Biro v. Conde Nast, 883 F. Supp. 2d 441, 458 (S.D.N.Y. 2012).
A third category of statements qualify as substantially true where the admitted truth
becomes more tenuous, but still the overall “gist” or “sting” cannot be said to be substantially
different. See Guccione, 800 F.2d at 302-03; Chau, 935 F. Supp. 2d at 662 (“Substantial truth
Page   18

 turns on the understanding of the average reader”) (internal citation omitted). See generally,
Cobb v. Time, Inc., 278 F.3d 629, 639 (6th Cir. 2002) (finding statement that boxer tested
positive for cocaine, when actually he tested positive for marijuana, to be substantially true, as
“[t]he ‘sting’ of the statement was that [the boxer] must have used an illegal drug prior to the
match.”).

Under both the First Amendment and Article I, Section 8 of the New York

Constitution, no claim for defamation can be based upon a substantially true statement.
The libel-proof plaintiff doctrine is a corollary to the substantial truth defense, insulating
statements that “could have produced no worse effect on the mind of a reader than the truth
pertinent to the allegation.” Guccione, 800 F.2d at 302. An individual who is associated with
certain anti-social behavior and suffers a diminished reputation may be “libel proof” as a matter
of law as it relates to that specific behavior or topic.
Under this doctrine, whether Penn committed domestic abuse or was convicted for doing
so is not the pertinent inquiry. Id. (the libel proof doctrine “is not limited to plaintiffs with
criminal records.”). Instead, the focus is whether “a plaintiff’s reputation with respect to a
specific subject may be so badly tarnished that he cannot be further injured by allegedly false
statements on the subject.” Cerasani v. Sony Corp., 991 F. Supp. 343, 352 (S.D.N.Y. 1998)
(citing Guccione, 800 F.2d at 303)). “Under the libel-proof plaintiff doctrine, if there is little or
no harm to a plaintiff’s already-low reputation, then the statements are not actionable.” Cerasani,
991 F. Supp. at 352; Jones v. Plaza Hotel, 249 A.D. 2d 31, 31 (1st Dep’t 1998) (affirming
dismissal based on prior court’s finding that the plaintiff was libel proof).
Irrespective of whether they are actually (or substantially) true, accusations of
misconduct have trailed Penn for decades. The public has long associated Penn with domestic

Page   19

 abuse, if not outright guilty of vicious actions of violence.9 The public domain is saturated with
tales of Penn’s alleged violent acts. Penn’s alleged physical abuse of his former wife Madonna
has, for example, been the subject of best-selling books, including: “Madonna Unauthorized” by
Christopher Andersen (Simon & Shuster, Inc., 1991); and “Madonna: An Intimate Biography”
by J. Randy Taraborrelli (Simon & Shuster, Inc., 2001), the latter of which top the best sellers
list in both the United Kingdom and United States, selling more than two million copies. (See
Sammataro Aff. at ¶ 19; see Ex. R supra, R-1, R-2, R-3). The former of these works contains the
following lurid account:10
Around 4 p.m., after Madonna had given her small household staff the rest of the
day off, [Penn] scaled the fence encircling the estate, broke into the house and
confronted a terrified Madonna. After slapping her around, he bound and gagged
her, then strapped her to a chair with twine. He berated and beat her for two
hours, then stormed out of the house.
Gagged, tied up and trembling with fear, Madonna waited for hours for help to
arrive. Incredibly, Penn returned, swigging tequila, and began tormenting her all
over again. This time, she managed to persuade him to untie her. Once free, she
dashed out of the house, jumped into the coral-colored 1957 Thunderbird Penn
9

Evidence of the public’s view that Penn has committed acts of domestic abuse was on display
earlier this year – prior to the Challenged Statement – in the fervent Twitter™ reaction to Penn’s
poorly-received joke regarding Alejandro González Iñárritu at the 2015 Academy Awards. See
Sean
Penn’s
Horrifying
History
of
Alleged
Abuse
(http://www.thedailybeast.com/articles/2015/02/23/twitter-turns-on-abuser-sean-penn-followinghis-oscars-green-card-joke.html) (quoting tweets: “Reminder: Sean Penn beats women.
#Oscars2015” and “Guys, Sean Penn is racist. Also, he beats women. Lest we forget.
#Oscars2015) (emphasis added). (See Sammataro Aff., Exhibit F at F-1, F-2).
10

The Court may take judicial notice of the contents of these books, as well as the below-listed
newspaper articles, without converting this motion to a CPLR 3212 motion for summary
judgment. See Grebow, 173 Misc. 2d at 479 (taking judicial notice of a newspaper article);
Wells v. State, 130 Misc. 2d 113, 121 (1985) (“Judicial notice is appropriate on pretrial motions
that seek dismissal of Plaintiff’s case”). See also, Cerasani v. Sony Corp., 991 F. Supp. 343, 354
n. 4 (S.D.N.Y. 1998) (taking judicial notice of widespread coverage”); Effie Film, LLC v.
Pomerance, 909 F. Supp.2d 272, 299 (S.D.N.Y. 2012) (“[courts may] take judicial notice of facts
that various newspapers, magazines, and books were published solely as an indication of
information in the public realm at the time, not whether the contents of those articles were, in
fact, true.”).

Page   20

 had bought her for her 28th birthday, locked the doors and called the police on her
car phone. She then sped off to the Malibu sheriff’s station to swear out a
complaint against her husband.
(See Sammataro Aff., Exhibit G at G-7, G-8). This same book attributes the following quotation
to Penn in describing his relationship with Madonna, “I got most of the beatings,” implying that
Madonna was minimally the recipient of some beatings. (Id. at G-5). Madonna: An Intimate
Biography and Madonna Revealed contain equally spine-chilling accounts. (See Sammataro
Aff., Exhibit H at H-6 through H-9 and Exhibit I at I-4 through I-7; see I-4, commenting that it
was “a unique, specific type of violence” and describing, on page I-5, the specific incident as
“torture” and quoting Lieutenant Bill McSweeney: “It was a serious matter. It was something
that if prosecuted would have had great implications.”).
These books are just the tip of the iceberg, as there are nearly three decades of stories,
read by millions across-the-globe about Penn’s alleged abuse. By way of example, in 1989, the
Associated Press reported that Madonna had “dropped assault charges” against Penn, despite the
fact that she was “trusted up like a turkey.” (See Sammataro Aff., Exhibit J at J-1). In a more
recent piece entitled, “Why Would Anyone Want To Date Sean Penn?” The New York Post
recapped certain alleged events including:
In 1987, Penn reportedly struck his then-wife, Madonna, across the head with a
baseball bat.... In December 1988, Penn allegedly tied Madonna to a chair in their
Malibu home and attacked her. The nine-hour ordeal only ended when the singer was
untied to use the bathroom and she fled to a police station.
(See Sammataro Aff., Exhibit K at K-1, K-2).
A Google™ search of “Sean Penn and domestic violence” produces 432,000 results (see
Sammataro Aff. at ¶ 20; see Ex. Q-1 supra), including countless news stories that pre-date, but

Page   21

 continue immediately up until the time of, the Challenged Statement:11


Is Madonna still in love with Sean Penn, the man who beat her up with a baseball
bat? (The Daily Mail, 2009) (“‘According to the police report,’ Penn was ‘drinking liquor
straight from the bottle’ and the abuse went on for several hours, during which time he
smacked and roughed up the victim … Penn was taken away in handcuffs and charged
with inflicting ‘corporal injury and traumatic conditions’ on [Madonna]”) (citing to the
police report) (emphasis added) (Id., Exhibit L at L-1, L-2 and L-4).



A Marriage Filled With Abuse (The Seattle Times, November 6, 1991) (“Fueled by
prodigious quantities of alcohol, Penn’s obsession with Madonna’s extramarital affairs
careened out of control. Their daily rows grew more violent. He threw a chair through a
closed window and smashed a full tureen of soup on the floor; she hurled a vase at his head
and pummeled him with her fists. He stuck her head in their gas oven.”) (Id., Exhibit M
at M-1 and M-2) (emphasis added).



No More Free Passes to Famous Men Who Abuse Women (Aly Neel, The Washington
Post, February 12, 2013) (“Gossip outlets in recent months have speculated about the
possibility of another celebrity reunion – Sean Penn and Madonna. Most of the coverage,
interestingly enough, has glossed over Penn’s violent, abusive behavior while the ‘Poison
Penns’ were married. Once Madonna was hospitalized after Penn struck her with a
baseball bat. He was charged with domestic assault in 1998 and pleaded guilty to a
misdemeanor.”) (Id., Exhibit N at N-2) (emphasis added).



There Was No PSA When Sean Penn Presented Best Picture: Sean Penn’s History of
Violence is Often Overlooked by His Hollywood Peers (www.buzzfeed.com, February 23,
2015) (“Penn has been arrested for domestic violence … In 1988, Penn was charged with
felony domestic assault on his then-wife Madonna. And by assault I mean he HIT HER
OVER THE HEAD WITH A BASEBALL BAT”) (all caps in the original). (Id., Exhibit
O at O-2 and O-3) (emphasis added).



Why Do Famous Men Keep Getting Away with Violence Against Women? (Zaba
Blay, The Huffington Post, September 8, 2015) (“In 1987, Sean Penn infamously tortured
then-wife Madonna for nine hours. He tied her to a chair, threatened to cut off her hair,
forced her to perform degrading sexual acts, and beat her with a baseball bat.”) (Id.,
Exhibit P at P-2) (emphasis added).
Given the volume and breadth of the publicity regarding Penn’s alleged domestic abuse,

together with the severity and specificity of Penn’s alleged actions, the Challenged Statement
could not have harmed his already tarnished reputation on the topic of domestic abuse. See
Guccione, 800 F.2d at 304 (reports of plaintiff’s adultery in widely circulated publications
11

The fact that Penn has not sued these publications raises troubling questions as to the special
animus driving this litigation.  
Page   22

 rendered him libel-proof on the topic of adultery); Wynberg v. National Enquirer, Inc., 564 F.
Supp. 924, 928-29 (C.D. Cal. 1982) (finding plaintiff libel-proof on the topic as to whether he
financial exploited Elizabeth Taylor, and noting the existence of pre-existing articles).
Consequently, the Challenged Statement is not defamatory as a matter of law and this
Court should dismiss the Complaint.
V.

The Complaint Fails to Plead Actual Malice.
The United States Supreme Court has carefully erected safeguards around defamation

actions involving public figures. Because public figures enjoy significantly greater access to the
channels of effective communication and, hence, have a more realistic opportunity to counteract
false statements, they must prove that the publication was made with actual malice. See Gertz,
418 U.S. at 344; Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (1967) (noting that public
figures merit less protection given that they have “sufficient access to the means of counterargument to be able to expose through discussion the falsehoods and fallacies of defamatory
statements.”) (internal citation omitted).
Actual malice focuses on the defendant’s attitude towards the truth or falsity of the
material published, and has nothing to do with bad motive, ill will, or malice in the ordinary
sense of the word. St. Amant, 390 U.S. at 730-31 (“Actual malice under the New York Times
standard should not be confused with the concept of malice as an evil intent or the motive arising
from spite or ill will.”); Biro v. Condé Nast, 963 F. Supp.2d 255, 276 (S.D.N.Y. 2013)
(“Importantly, actual malice does not connote ill will or spite; rather it is a term of art denoting
deliberate or reckless falsification.”) (internal citation omitted). “Actual malice means with
knowledge that the statement was false or with reckless disregard as to whether or not it is true.”
Gertz, 418 U.S. at 345; See Kipper v. NYP Holdings Co., Inc., 12 N.Y.3d 348, 353 (2009) (actual
malice is a subjective inquiry, “focusing upon the state of mind of the publisher of the allegedly
Page   23

 libelous statements at the time of publication”). Significantly, “reckless conduct is not measured
by whether a reasonably prudent man would have published, or would have investigated before
publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. at
731.
Not only is proving actual malice a heavy burden, so is pleading it. New York law
requires that actual malice be plead with specificity. See Themed Restaurants, 781 N.Y.S.2d at
449 (“the court holds that specificity in the pleading of constitutional or actual malice is
required.”); Rivera v. NYP Holdings, Inc., 16 Misc.3d 1121(A), at *4 (Sup. Ct. N.Y. County,
Aug. 2, 2007) (“A failure to plead actual malice in a complaint for defamation is grounds for
dismissal of the complaint.”). See also, Jimenez v. United Federal of Teachers, 239 A.D.2d 265
(1st Dep’t 1997), app. dismissed, 90 N.Y.2d 890 (1997) (“[public figure plaintiff] was required
but failed to allege facts sufficient to show actual malice with convincing clarity”); Red Cap
Valet, Ltd. v. Hotel Nikko (USA), Inc., 273 A.D.2d 289, 290 (2d Dep’t 2000) (“plaintiff failed to
allege any facts from which malice could be inferred”); Diario El Pais, S.L. v. The Nielsen
Company (US), Inc., No. 07 CV 11295 (HB), 2008 WL 4833012, at *6 (S.D.N.Y. Nov. 6, 2008)
(“Actual malice must be pled with specificity.”). Cf. Alianza Dominiciana, Inc. v. Luna, 229
A.D.2d 328, 329 (1st Dep’t 1996) (permitting notice pleading, finding that constitutional malice
may be advanced later in the proceeding).
In requiring that actual malice be pled with specificity, the Themed Restaurants court
noted the need for “vigilance” in order to ensure that free speech is safeguarded against
attenuated defamation claims by providing assurance to those exercising their First Amendment
rights that do so will not needlessly become prohibitively expensive. See Themed Restaurants,

Page   24

 781 N.Y.S.2d at 449.

Under Themed Restaurants and its progeny, bare recitations are

insufficient. See Rivera v. 16 Misc.3d 1121, at *4 (“Contrary to plaintiff’s assertions merely
amending the complaint to insert the words ‘actual malice’ will not cure the defect since there
are no allegations presented in the complaint that fall within the definition of actual malice.”).
Penn’s bald allegations of actual malice are woefully inadequate:


“Daniels, upon information and belief, made his defamatory statement for improper
purposes, with knowledge that the statements would be published throughout and
outside of the United States” (Sammataro Aff., Ex. A at ¶ 23); and



“Upon information and belief, Daniels intentionally portrayed Penn in the abovereferenced manner knowing that his depiction was false and untrue or with reckless
and wanton disregard for the truth.” (Id. at 25).
These allegations are barren of any facts that suggest the Daniels voiced his opinion with

a high degree of awareness of probable falsity, or entertained any doubt, much less serious
doubts, as to the basis of his viewpoint. See Dillon, 261 A.D.2d at 40 (actual malice cannot be
plead “on surmise and conjecture.”).
Further, because the Challenged Statement echoes nearly three decades of reports about
Penn’s alleged domestic abuse, permitting conclusory allegations that Daniels’ opinion was
made with known falsity or a reckless disregard for the truth fails to heed Themed Restaurant’s
call for vigilance. See, e.g., Church of Scientology Int’l v. Daniels, 992 F.2d 1329, 1334 (4th
Cir. 1993) (the “volume of published commentary” supporting the challenged statement makes it
“impossible to conclude that [defendant] entertained serious doubts as to the truth of his
statement or spoke with a high degree of probable falsity.”); Konrad v. Brown, 937 N.Y.S.2d
190, 191 (2012) (“defendant’s statements were based on documents or articles he had a read and
thus were not made with knowledge of their falsity or reckless disregarded of whether they were
true”) (citing Kipper, 12 N.Y.3d at 353-354)).

Page   25

 Penn’s failure to plead actual malice with the requisite specificity warrants dismissal of
his Complaint.
CONCLUSION
For each and every of the foregoing reasons, Daniels respectfully requests that this Court
enter an order dismissing Penn’s Complaint, with prejudice, and for such other and further relief
as the Court deems just and proper, including an award of attorneys’ fees and costs.

Dated: December 3, 2015

Respectfully submitted,
STROOCK & STROOCK & LAVAN LLP
Attorneys for Lee Daniels
200 South Biscayne Boulevard, Suite 3100
Miami, Florida 33131
-and180 Maiden Lane
New York, New York 10038-4982
(212) 806-5400
Telephone: (305) 358-9900
Facsimile: (305) 789-9302
docketing@stroock.com

By: /s/ James G. Sammataro
James G. Sammataro
jsammataro@stroock.com
New York Bar No. 822678
Jose Garcia-Tuñon
jgarciatunon@stroock.com
New York Bar No. 4867487

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