UPDATED: May 11, 2012, 5:42 p.m.

Jim Boeheim’s use of rhetorical hyperbole and personal opinion provided reason for a judge to drop the slander suit against Syracuse University and Boeheim on Friday.

State Supreme Court Justice Brian DeJoseph wrote in his 30-page decision that Boeheim’s statements against former SU ball boys Bobby Davis and Mike Lang were not statements of fact, but opinions and therefore protected from defamation claims.

Davis and Lang both said Boeheim defamed them when he publicly accused the stepbrothers of lying about former associate men’s basketball coach Bernie Fine molesting them.

Fine, who was fired from the university on Nov. 27, has denied the allegations and has not been charged.

In assessing the effect of allegedly defamatory statements, DeJoseph wrote that the statement’s context must be analyzed for the specific language used and it’s precise meaning and the ability of those statements to be proven true or false. The statements must also be reviewed for broader social context, so that what is heard becomes more likely to be opinion than fact.

The dismissal means that unless Davis and Lang appeal, the only pending action in the case is the continued criminal investigation by the Secret Service and Syracuse police.

Gloria Allred, Davis and Lang’s lawyer, said that when Davis came forward years ago and complained about the sexual abuse, he was ignored, and so she will continue to pursue her case.

‘It is difficult enough for victims of childhood sexual abuse to come forward,’ she said in an email. ‘This decision sends the message that you can attack the alleged victim and call him a liar with impunity. It makes it even harder for victims to come forward.’

Allred said she will file an appeal and continue to fight.

Boeheim’s remarks were made during the highly publicized sexual abuse scandal at Pennsylvania State University. The broader context of the Penn State scandal was relevant in that it placed Boeheim in a ‘defensive posture,’ DeJoseph wrote.

Fine and Boeheim had been acquainted for more than 40 years, and Fine was an assistant to Boeheim for 35 seasons, establishing Boeheim’s defense as that of a friend and colleague.

‘Boeheim’s statements appear to be a ‘product of passionate advocacy’ as opposed to ‘careful, logically developed reason,” wrote DeJoseph.

Boeheim’s use of the word ‘liar’ was also deemed non-actionable, as DeJoseph wrote that the court’s review of his statements were personal opinion and rhetorical hyperbole rather than objective fact – meaning they are constitutionally protected.

Boeheim also never explicitly or implicitly suggested in any of his comments that he was personally involved in conducting an investigation of Davis’ claims, DeJoseph wrote.

‘The content, tone and purpose of Boeheim’s statements would clearly signal to the reasonable reader, that what was being read in the articles published in the days after the initial ESPN report were likely to be an opinion – a biased, passionate, and defensive point of view of a basketball coach – rather than objective fact,’ he wrote.

DeJoseph and James Zeszutek, Boeheim’s lawyer, were not available for comment.

Roy Gutterman, director of the Tully Center for Free Speech at Syracuse University, said he was not surprised to hear the suit was dropped.

‘That doctrine was developed by the Supreme Court,’ he said. ‘If a statement is not capable of being proven true or false it’d be deemed pure opinion and protected by the first amendment.’

But Gutterman does not think the case is over.

‘No matter what there’s still opportunity for appeal,’ he said. ‘I don’t think it’s over yet.’

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Published on May 11, 2012 at 12:00 pm

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