Well known for their highly publicized interactions with the legal system, Rose McGowan and her former defense attorney Jose Baez faced off this year over conflict of interest allegations in Baez v. McGowan, 2020 Ill. Cir. LEXIS 458 (2020).  Jose Baez is best known for his successful defense of Casey Anthony, a young woman tried for the murder of her two-year-old daughter in 2011, while actress, activist, and author Rose McGowan famously accused media producer Harvey Weinstein of raping her at the 1997 Sundance Film Festival.  McGowan is widely considered to be a fervent #MeToo supporter and touts nearly two million followers across her Twitter and Instagram profiles.

McGowan first hired Baez as her trial attorney in 2018 after McGowan was charged with felony possession of a controlled substance in Virginia.  The prosecution alleged that McGowan concealed a baggie of cocaine in her wallet, which was discovered after she accidentally left it behind on an airplane.  Although McGowan theorized that Weinstein paid off airline staff to plant the cocaine as part of a conspiracy to silence his rape accusers, she ultimately agreed to a plea deal and did not present the Weinstein theory to the court.

The conflict of interest allegations arose in early 2019 when McGowan learned that Baez began representing Weinstein in a criminal case in New York in which Weinstein was accused of rape.  Months later, in the fall of 2019, McGowan filed a complaint in California claiming that Weinstein and several accomplices attempted to silence Weinstein’s rape accusers by discrediting them.  Throughout 2019, McGowan claimed that Baez was engaging in a serious conflict of interest by representing Weinstein and made several comments about Baez, including the following:

  • The Shadiness Statement: On January 23, 2019, McGowan told the Daily Beast: “This is a major conflict of interest, but I knew there was shadiness going on behind the scenes . . . This is why my case didn’t go to trial—my instinct was that my lawyers had been bought off . . . I thought Harvey would get to them behind the scenes and I wouldn’t have fair representation.”
  • The F**kery Statement: On January 23, 2019, McGowan retweeted the Daily Beast article that cited The Shadiness Statement and wrote, “I’m not even surprised by the level of fuckery going on here. @thedailybeast.”
  • The Tentacles Statement: On January 25, 2019, The Blast published an article stating that “Sources close to McGowan tell the Blast she is ‘not surprised’ Baez is working for Weinstein and believes the ex-producer has had ‘tentacles’ into her life for years.”
  • The Rats Attack Statement: On January 27, 2019, McGowan posted a photo of Baez on Twitter with the caption, “When Rats Attack! Coming to a cineplex near you!”

Baez brought a complaint against McGowan in Cook County, Illinois for defamation regarding the above statements, among others.  The Court ultimately dismissed the case in its entirety, given that McGowan’s statements were not defamatory.

The Court first held that The Tentacles Statement did not constitute defamation, which   requires that the defendant either: (1) made the defamatory statement; or (2) is liable for the defamatory statement of another.  The Blast article containing The Tentacles Statement merely indicated that “sources close to McGowan” provided the “tentacles” comment.  However, there was no indication that McGowan was the root source of the statement.  Accordingly, the Court held that the defamation claim was not well pleaded with regard to The Tentacles Statement.

The Court further held that The Shadiness Statement was neither defamation nor defamation per se.  The Court initially agreed with Baez’s argument that a statement regarding his lack of professional integrity and allegations of misconduct would typically be defamation per se.  In particular, McGowan’s statement that Baez had been “bought off” could damage his professional reputation as an attorney.  However, McGowan’s precise statement was that her “instinct” was that her “lawyers had been bought off.”  The Court held that McGowan’s Shadiness Statement reflected an opinion and, accordingly, was not defamation.

The Court similarly determined The Rats Attack Statement and The F**kery Statement were not defamation per se, given that they also reflected McGowan’s opinion of Baez.  Notably, the Court dismissed all arguments that The F**kery Statement constituted defamation per se, given that “fuckery” carries no legal meaning and is therefore a matter of opinion.

The result in Baez v. McGowan demonstrates the strength of the “opinion defense” against defamation claims and indicates that the use of hyperbolic and crude rhetoric may in fact protect the speaker from liability.