The first salvos in a federal court case pitting two of the nations most powerful lawyers against each other were heard Tuesday in New York, as noted constitutional law scholar Alan Dershowitz argued that his Twitter attacks against a woman accusing him of sexual abuse are protected free speech.
The defamation case promises to provide lurid new details about Jeffrey Epstein’s sex trafficking, including whether other powerful men were involved in procuring young women from Epstein for sex. Among the names thrown out at the hearing Tuesday was Leslie Wexner, owner of Victoria’s Secret. Dershowitz said he will be called as a witness should the case go to trial.
Dershowitz, 81, is being sued for defamation by Virginia Giuffre, who alleges that, when she was underage, she was repeatedly directed by Epstein to have sex with Dershowitz. Dershowitz has aggressively defended himself, attacking her on Twitter and in other media for years.
A professor emeritus at Harvard University who has defended an array of controversial people, Dershowitz is trying to get the defamation case thrown out, and failing that, get Giuffre’s lawyer, the equally powerful David Boies and his firm, removed from representing her in the case.
Dershowitz has repeatedly called Giuffre “a liar, a perjurer and an extortionist,’’ Dershowitz’s attorney, Howard Cooper conceded several times in open court. But the Harvard law professor’s recent comments, particularly those on the internet, are not libelous, he said, because they were the same statements he has leveled against Giuffre for many years.
He also argued that Dershowitz’s comments were made under a “self-defense privilege,’’ which grants people the ability to publicly defend themselves against false claims under certain circumstances — with some restrictions.
Because Giuffre failed to sue Dershowitz when he first made his comments against her four years ago, she cannot now argue that she was defamed by recent comments he has posted on Twitter, Cooper said. The comments in 2015 are the same as recent comments, so they are outside the statute of limitations, Cooper told U.S. District Court Judge Loretta Preska.
The statute of limitations for defamation in New York is one year. The state also has what’s known as the “single publication rule,’’ which prevents another defamation cause from being brought with each additional publication of the alleged libelous statement, even if it is repeated on the internet.
But the New York Court of appeals has ruled that altering the alleged defamatory content may trigger “republication,” and some courts have also said that moving the content to different platforms also constitutes republication, which resets the statute of limitations.
Dershowitz’s lawyers claim that everything he has said should be considered part and parcel of the same statements he has made previously and, therefore, covered by the statute of limitations.
Preska, however, was skeptical of the argument, questioning Cooper on whether the law of defamation in New York gives people the right to repeat potentially libelous statements for eternity.
“How are the later statements he made a republication?’’ Preska asked. “Are you saying that Mr. Dershowitz can keep saying these statements seven days a week, 20 channels a day, forever?’’
Cooper responded that there is a presumption that Dershowitz’s comments have reached a global audience by now, making his statements “viral’’ and thus immune from libel claims.
Sigrid McCawley, a senior partner with Boies Schiller and Flexner, who represents Giuffre in the case, said even if one accepts that Dershowitz’s media audience is the same as in 2015, his recent statements differ from those he said four years ago.
For example, four years ago, he didn’t mention Wexner as part of the conspiracy that he claims prompted Giuffre to accuse him of sexual misconduct. Over the past year, Dershowitz has publicly accused Boies of masterminding a scheme using Dershowitz as leverage against Wexner, an Ohio billionaire who was an Epstein client.
During Tuesday’s hearing, Dershowitz’s lawyers alleged that Giuffre has said in court papers that she was forced to have sex with Wexner, the 82-year-old chairman of the Limited Brands. Dershowitz repeated that charge outside the federal courthouse. He has claimed that by accusing him of sexually abusing Giuffre, the Boies firm would be able to extract a settlement from Wexner, under the presumption that Wexner would be afraid that Giuffre would go public with her allegations against him the same way she did against Dershowitz.
There’s been no indication thus far of any settlement negotiated with Wexner, who has not commented about Giuffre’s allegations or Dershowitz’s statements about those allegations.
In August, after Epstein’s arrest in New York on sex trafficking charges, Wexner said in a letter to members of the board of his charitable foundation that he ended his relationship with Epstein in 2007, when allegations first emerged in Florida that Epstein had molested dozens of underage girls at his Palm Beach mansion.
He also claimed that Epstein had misappropriated millions of dollars from him over the years, even though he did not report that to authorities at the time. His company is now investigating his ties to Epstein.
Giuffre’s allegations that she had sex with Dershowitz and other men at the age of 17 were revealed as part of a 2008 civil court case brought against the government by several women who were molested as teenagers in South Florida by Epstein, a wealthy, politically connected money manager who was friends with both Donald Trump and Bill Clinton, among others.
Giuffre filed an affidavit in 2014, seeking to join the 2008 civil case. In the affidavit, she said that Epstein forced her to have sex with Prince Andrew on several occasions and also with Dershowitz, among Epstein’s arsenal of attorneys who successfully helped him escape federal sex trafficking charges in Florida in 2008.
Dershowitz, who frequently appears on television as a constitutional expert and political commentator, publicly attacked Giuffre and her Florida attorneys at the time, starting in 2015. Those lawyers, Brad Edwards and Paul Cassell, sued Dershowitz for defamation, and the case was later settled out of court. As part of the settlement, Edwards and Cassell issued a statement acknowledging that filing Giuffre’s affidavit was a distraction from the merits of the 2008 civil case. However, their accord with Dershowitz did not address the veracity of Giuffre’s claims, which she stands by to this day.
In November, after the Miami Herald published a series on the Epstein case, “Perversion of Justice,’’ Dershowitz again attacked Giuffre, publicly inviting her to sue him for defamation so that he could prove that she was a liar in court.
Giuffre did just that in April.
“I welcome this lawsuit because everything in the complaint is false and I will be able to disprove all of this in a court of law,’’ Dershowitz told the Herald at the time.
But two months later, he changed gears, filing a motion to have the case dismissed.
When asked about his change of heart, Dershowitz said that he came to realize that the constitutional argument of free speech is more important than his own interests of vindication in court.
“This is what happens when someone believes to their core that they’ve been falsely accused of a heinous crime and decides what one can only do in an age of global communication is to defend themselves. This is a really important issue,’’ Cooper, Dershowitz’s attorney, said after the hearing.
In 2008, Epstein was able to negotiate an unusually lenient plea deal. The deal, approved by then-Miami U.S. Attorney Alexander Acosta, gave Epstein immunity from sex trafficking charges in exchange for him pleading guilty to prostitution charges in state court. The deal, considered a slap on the wrist given the seriousness of the charges and the number of girls involved, violated the federal Crime Victims’ Rights Act, a federal judge ruled in February.
The ruling is considered a victory for crime victim rights advocates. The judge, however, later ruled that Epstein’s victims were not entitled to punitive damages or attorneys fees.
New York federal prosecutors are continuing their investigation into Epstein’s sex trafficking case, targeting others named by victims as helping Epstein, including schedulers, pilots, lawyers and other associates.
Authorities suspect that over two decades, Epstein molested, raped or otherwise sexually abused possibly hundreds of girls and young women.
This article has been updated to correct the last name of Judge Loretta Preska.
Miami Herald staff writer Nicholas Nehamas contributed to this report.