Coleman v. Grand: Navigating The Fact-Opinion Divide In Sexual Misconduct Defamation Claims

When accusations of sexual harassment or assault are made public, the alleged perpetrators will not infrequently respond by filing defamation claims against their accusers. For a recent, especially high-profile example, see Justin Baldoni's countersuit against Blake Lively.¹

Allegations of sexual harassment that would otherwise be defamatory may be shielded by a litigation privilege if they were made in judicial or quasi-judicial proceedings. But if the accusations were made prior to and outside that context, courts assessing defamation claims will typically need to determine whether the statements at issue constitute actionable assertions of fact (i.e., are legally capable of supporting defamation liability) or instead mere expressions of opinion, which are deemed protected under the First Amendment (and thus non-actionable).

Earlier this month, the United States Court of Appeals for the Second Circuit addressed that precise distinction in Coleman v. Grand, where it issued a 2-1 decision that included a notable exchange between the majority opinion and the dissent.

Factual & Procedural Background

In Coleman, Grand alleged that, as an aspiring saxophonist, she had met Coleman, a prominent saxophonist thirty-five years her senior, at a workshop he gave in 2009, and that the two of them later began a complicated, on-and-off sexual relationship. In 2017, after that relationship ended, Grand circulated a seven-page, single-spaced letter to roughly 40 people, mostly industry friends and colleagues, claiming that Coleman (whom she referred to in the letter only as "X") had sexually harassed her and pressured her to be intimate with him in exchange for training and mentorship.

Among other assertions, the letter stated that the "sexual harassment started" in 2013 and that Coleman routinely "pressure[d]" Grand to be "intimate with him," "made" her share hotel rooms with him when they traveled for work, "relentlessly ask[ed] [her] to have sex with him" and "g[o]t really angry" when she refused, offered her professional opportunities in exchange for sex, "would call [her] in the middle of the night and never take no for an answer," and got into bed with her and kissed her one night when she was asleep even though she had explicitly told him she did not want to sleep with him. In the letter, Grand also acknowledged her own role in the unhealthy dynamic, stating that she had been "manipulative" and did not "intend to cast [her]self as only a victim of the situation." Grand explained that the letter was intended to start "a larger conversation about what's acceptable and what's not" in the music industry, and to contribute to the "conversation" sparked by the #MeToo movement.

In 2018, Coleman filed a federal court complaint alleging defamation under New York law. He argued that the following statements made by Grand were provably false: (1) that when she moved to New York, he "convinced [her] to be intimate with him"; (2) that she was "sexually harassed" within a "professional relationship"; (3) that the "sexual harassment" began in September 2013, when she "wasn't in love with him anymore" and "didn't want to be intimate with him anymore"; (4) that he often "call[ed] [her] in the middle of the night and [would] never take no for an answer"; and, described as a false insinuation, (5) that she was "forced to go to his hotel room" during a 2011 trip.

The district court dismissed Coleman's defamation claim on summary judgment, concluding, among other grounds, that the challenged statements were protected opinions rather than falsifiable facts.

The Second Circuit Opinion

On appeal, the Second Circuit affirmed the district court's judgment, agreeing that what Coleman was challenging were "only non-actionable statements of opinion, and not the disclosed facts on which those opinions were based."

The court explained that, in determining whether statements constitute facts or opinions, New York law provides the following general principles: Pure opinions come in two forms: (1) "a statement of opinion which is accompanied by a recitation of the facts upon which it is based"; and (2) "an opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts." And in evaluating whether "a reasonable reader could have concluded that the [statements] were conveying facts about the plaintiff," 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 . . . or the broader social context and surrounding circumstances are such as to signal readers . . . that what is being read . . . is likely to be opinion, not fact."

Applying those principles, the Second Circuit concluded that the challenged statements by Grand were merely statements of opinion supported by disclosed facts, and hence not defamatory. According to the court, the letter itself noted that its purpose was to tell a "more complete story"; the letter narrated, "in great detail," facts "regarding Grand and Coleman's relationship that are capable of being proven true or false, leaving readers free to determine for themselves whether Grand's belief that she was sexually harassed is a fair assessment of the information provided"; and a reasonable reader "could only have understood Grand's assessment that Coleman sexually harassed her (and similar statements of opinion) as Grand's personal characterization of the facts set forth in the letter."

The Dissent

The above majority opinion was accompanied by a dissenting opinion, which contended that a reasonable reader would understand Grand's accusations as statements of fact rather than opinion.

First, the dissent stated that Grand's detailed allegations did not convey "mere feelings of discontent," but rather had a precise meaning, and that a "reasonable reader would understand the letter to claim that Coleman used his professional status to pressure Grand into sex." Such allegations, the dissent said, would be sufficient to state a claim for sex discrimination in a Title VII complaint against an employer. Second, the dissent stated that the allegations are capable of proof, as Coleman either engaged in the alleged acts or did not. Third, the dissent argued that the letter's context showed that it would be expected to convey factual claims of sexual harassment. The dissent emphasized that the accusations were made in a lengthy, specifically documented letter and designed to "share her experience with 'sexism in the music industry' in the context of the #MeToo movement that aimed to raise awareness about women who have been sexually harassed and to expose their harassers."

Rejecting the majority's characterization that Grand was only "describing her subjective experience" and "sharing personal opinions," the dissent claimed that Grand was instead making serious accusations of misconduct, and specifically alleging "multiple instances of sexual harassment in which Coleman conditioned professional opportunities on sexual intercourse." The dissent also cited a number of New York cases that it described as having routinely held that accusations of sexual harassment – like Grand's, in the dissent's view – qualify as statements of fact.²

All of this led the dissent to conclude that "Grand's accusation that Coleman sexually harassed her was not an opinion about how she felt about neutral facts," but rather "a factual assertion about the details and the character of Coleman's conduct."

The Majority's Response to the Dissent

The majority opinion took the opportunity to respond directly to the dissent's reasoning and arguments. First, the majority conceded that it was indisputable that Grand's letter made "factual claims" that are "either true or false." But, the court said, it was constrained to analyze only the precise statements that Coleman had challenged, and he was not, according to the majority, challenging the letter's factual content, but rather Grand's subjective characterization of the asserted facts as sexual harassment.

Second, the majority highlighted the letter's having made clear that Grand's characterization of Coleman's conduct as sexual harassment was merely her "personal assessment of the specific facts alleged in her letter." Accordingly, under New York law and when viewed in context, a reasonable reader would not have perceived Grand's use of the "label" of "sexual harassment" as a distinct factual assertion or as implying undisclosed facts, but rather as a "proffered hypothesis" based on the detailed recitation of underlying facts.

Third, the majority found that the attempt to analogize this case to Title VII hostile-environment claims was misguided, since what matters in the Title VII context are the facts underlying a harassment claim, "not the plaintiff's use of that label."

Fourth, the majority distinguished the dissent's case law, arguing that "the defamatory statements [in those cases] either included concrete factual assertions that the plaintiff challenged as untrue or implied undisclosed facts that cast the plaintiff in a negative light." In contrast, according to the majority, New York law establishes that accusations of misconduct like Grand's "could be regarded as mere hypothesis and therefore not actionable if the facts on which they are based are fully and accurately set forth and it is clear to the reasonable reader or listener that the accusation is merely a personal surmise built upon those facts."

In conclusion, the majority opinion stated that, although Coleman and the dissent might dispute Grand's "belief that the facts set forth in her letter rise to the level of sexual harassment," New York law protects Grand's right to express that opinion "while letting the reader decide whether the disclosed facts support her position."

Takeaways

The Coleman ruling provides significant insights into competing views of the distinction between fact and opinion in cases involving accusations of sexual harassment. Making this distinction is reserved for judges (rather than juries), and Coleman illustrates just how contentious and challenging it can be to make that distinction in practice.

Coleman teaches that litigants defending against claims of defamation will want to emphasize, where possible, that their statements included ample disclosure of the relevant facts underlying and supporting their assertions; that they characterized or contextualized the statements as their own personal or subjective narrative or account, or their own personal opinion on a complex, disputed topic; and that their statements were framed as their personal version of the story, with readers left to reach their own different or divergent views or conclusions based on the underlying facts.

For those asserting defamation claims, Coleman underscores the importance of focusing falsity challenges on specific factual content and on underlying factual assertions, rather than on anything that could be construed as personal, subjective conclusions or characterizations of facts. Merely challenging a defendant's belief that conduct amounted to sexual harassment, but not the disclosed facts on which that belief was based, will not be enough to prevail on a defamation claim under New York law.

Footnotes

1. Baldoni's defamation-related claims against Lively were recently dismissed, including under a special California law concerning sexual harassment reporting (i.e., California's Protecting Survivors From Weaponized Defamation Lawsuits Act), and are not the focus of this article.

2. Among the cases cited by the dissent were the following, with the dissent's parenthetical case descriptions included verbatim:

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