A set of briefs submitted to the New York Court of Appeals outlines how each side will argue when oral arguments for the defamation case against Syracuse head men’s basketball coach Jim Boeheim are held on Sept. 9.

Former Syracuse ball boys Mike Lang and Bobby Davis initially filed their slander lawsuit in December 2011, not long after Boeheim told the media the stepbrothers were liars who were out to get money.

Lang and Davis allege that Bernie Fine, a former associate head men’s basketball coach, sexually abused them during the 1980s and 1990s. Syracuse University fired Fine on Nov. 27, 2011. He has denied all wrongdoing and wasn’t charged after a nearly yearlong federal investigation.

A state Supreme Court justice threw out the lawsuit in May 2012 after ruling Boeheim’s statements were opinions protected under free speech. On Oct. 4, an intermediate state appellate court upheld that decision 3-2.

In a defamation lawsuit, a plaintiff must prove that a false statement was published about them and is causing harm to their reputation, through financial damages. If the lawsuit goes to trial, a jury determines how much that harm is worth. The person bringing the lawsuit has the burden of proof, meaning Davis and Lang must prove that Boeheim’s statements were knowingly false facts and not just his opinion.

In the 57-page plaintiff’sbrief, Lang and Davis’ lawyer Mariann Meier Wang argues that Boeheim made defamatory statements about her clients that were “specific, factual and provably false.” Her argument, detailed in the brief,  has five main points:

• Wang contends that Boeheim’s statements are provable statements of facts. Just because he used “rhetorical flourishes or questions or prefaced his statements with ‘I believe’” does not make his statements an opinion.

• She argues that Boeheim’s factual statements were defamatory. Boeheim called Lang and Davis liars, which damages their reputations.

• A reasonable reader, Wang argues, could conclude that Boeheim had accused Davis and Lang of committing crimes, including extortion and filing false reports. Although Boeheim never used the words “extortion” or “false report,” past courts have ruled that as long as the speaker states a set of facts that describes a crime, the statement is defamatory.

• Under New York state law, only statements of “pure opinion” are protected speech. The brief contends that Boeheim’s statements were “mixed opinion” and therefore can be considered defamatory. New York law defines two types of “mixed opinion.” The first type involves statements where the speaker implies that they know certain facts, unknown to their audience, that support their opinion. The second type involves statements where a “gross distortion of the facts” form the basis for the speaker’s opinion. Wang argues that Boeheim’s statements fall under both these types.

• Wang argues that the context of Boeheim’s statements could have led a reasonable reader to conclude that his statements were facts. Boeheim’s statements appeared in straight news articles and were not made under pressure or in an impromptu manner. In addition, Wang argues that the lower court’s notion that Boeheim made the statements in order to distinguish himself and the allegations from Joe Paterno and the Penn State scandal is incorrect. Boeheim was not being accused of any wrongdoing but was “decisively injecting himself into the news to tar and diminish” Davis and Lang.

In a 46-page brief outlining the argument in defense of Boeheim, Helen Cantwell argues that his statements, when taken as a whole and in context, were not “capable of defamatory meaning.” Cantwell’s argument has four main points:

• Cantwell contends that both lower courts applied “the appropriate standard of review” in concluding that Boeheim’s statements were not susceptible to defamation. Cantwell argues that the lower courts only looked at whether Boeheim’s statements could be considered defamatory when deciding to dismiss the case, not at whether his statements were true. The courts examined Boeheim’s statements as a whole and then ruled that they were protected opinion, Cantwell argues.

• The brief states that the appellate courts were correct when they concluded that Boeheim’s statements were opinion. Boeheim’s statements were “an essentially uninformed opinion denying the accusations against his long-time friend,” Cantwell argues, even if his opinion was an arguably “insensitive and controversial one.” The use of rhetorical devices in Boeheim’s statements, including epithets, hyperbole and rhetorical questions, points to this conclusion, the brief states.

• Cantwell argues that the lower courts correctly determined the context of Boeheim’s statements. Reading the full news articles in which Boeheim’s statements appear make it clear that he was only expressing an opinion as he is frequently described as being “emotional” and “defensive.” The brief also states that the Penn State scandal is relevant to context. The Syracuse allegations broke just days after the events at Penn State and the two incidents were frequently discussed together, the brief states.

• Boeheim’s statements when taken as a whole do not constitute mixed opinion. Rather than showing he had access to undisclosed facts, Boeheim’s statements about his long friendship with Fine should have alerted readers that he was biased. In addition, Boeheim’s statements were not based on “grossly distorted facts” and when taken as a whole only convey “disbelief of the allegations and doubt as to the Plaintiffs’ motives.”

Published on May 20, 2014 at 10:33 am

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