BRATTLEBORO — Since the #MeToo movement broke like a wave last year, a key question - across the board - has been how so much harassment and abuse could be known about and whispered for years without seeing the light of day.
There are many reasons, but a lot it has to do with how the law works.
In recent months, anyone who has followed the news has grown accustomed to learning about non-disclosure agreements, out-of-court settlements, and threats of defamation, libel, or slander. From Harvey Weinstein and Bill Cosby to Garrison Keillor and the president of the United States, Donald Trump, each tale has had a legal angle.
This story does, too.
Rizzo, through his lawyer, Rick Contino of Dummerston, threatened a civil lawsuit against Whitney and Dandelions. This was shared with Whitney's attorney, Michael S. Lewis, an attorney-at-law with Rath/Young/Pignatelli, on March 14.
On April 13, Contino informed Lewis that “We are just about ready to file here.” He added, “As always, Peter is happy to discuss first if your client has any reservations.”
The lawsuit had not been filed at press time.
That same day, Diana Whitney posted what she called a “newsflash” on Facebook, announcing the threat of the lawsuit publicly. The post received scores of responses in support of her statement.
“This is classic weaponizing of the legal system to silence the voices of victims,” wrote Lisa Kuneman, a local trauma therapist and member of the steering committee of the Woman's Action Team.
Contino shared with Whitney's lawyer a prospective legal document - watermarked as “Confidential: for settlement purposes.”
Buried in the paperwork for discovery are requests for the names of people who Whitney or Dandelions claim have been harmed, and for the names of people who either would-be defendant referenced in various posts and comments.
The draft alleges defamation, along with counts of invasion of privacy and an injunction that neither Whitney nor Dandelions speak or publish information about the plaintiff, Peter Rizzo, or Bhava Yoga.
The civil action includes a request for “interrogatories” that includes 30 sections, each with several items.
Lewis, representing Whitney, responded on March 20, briefly and clearly.
“Your client's effort to seek a meeting upon pain of a threatened civil action appears to be more of the same from him,” he wrote. “My client is not interested in meeting with him or discussing this matter with him.”
Standards of defamation
The First Amendment guarantees of freedom of speech in the United States are broad. You can't shout “fire” in a crowded theater, but you can burn the U.S. flag in protest, or march through the streets wearing Nazi insignia - an act that might make one liable for jail time in Germany.
At the same time, there are limits to what one person can say about another person or a business entity, and most of these in legal terms fall under the heading of “defamation,” which includes libel and slander.
Spreading rumors that may cause material harm in an open and published way can make one liable for a civil action for defamation.
The law is complex on this matter. One consideration is whether the person who is the object of public utterances is a public or private person. There is wider latitude in the case of public figures.
A second question is whether the statement or statements have caused injury, which generally means to reputation, but in some states can include mental anguish.
Actions regarding defamation are civil cases in which part of the judgment involves weighing the harm caused and awarding monetary damages.
The most important question, in a defamation suit, may be the question of whether the statements that were alleged to be defamatory are, in fact, true. Such statements are, by definition, not defamatory.
A silencing effect
A lawsuit can have a chilling effect on free speech. Practically speaking, so can the threat of a lawsuit, even if one is not actually filed.
Even the potential for a civil action seeking damages for defamation can have a silencing effect, especially when the plaintiff has deep pockets and can afford lengthy legal proceedings. A defendant convinced of the truth of what they have to say might not have the resources to mount a defense.
The #MeToo movement has exposed ways in which people with wealth and power have leveraged the legal system to keep potentially embarrassing stories out of the public eye, using nondisclosure agreements in settlements and other legal actions or threats.
It also has given women courage to stand up and resist the ways in which the legal system gives the edge to those with money and status, with many violating agreements to be silent about bad behavior in the workplace or the classroom.
Along with 27 other states and the District of Columbia, Vermont has anti-SLAPP laws on the books.
SLAPP is an acronym for “strategic lawsuits against public participation.” Anti-SLAPP laws are designed to level the playing field between well-resourced targets of public protest and those who have made allegations against them in certain types of lawsuits.
Such laws vary from state to state. In general, they place a higher burden for proof on the legitimacy of plaintiffs' claim of defamation, and they make them liable for legal costs.
“A defendant in an action arising from the defendant's exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the U.S. or Vermont Constitution may file a special motion to strike under this section,” the law says.
In Vermont, the law limits the range of discovery a plaintiff can request unless a preponderance of proof is seen, and also makes the plaintiff liable for any legal fees a defendant has occurred if the case is dismissed or the judgment goes against the plaintiff.
In his correspondence about the case, Lewis cited a Vermont lawsuit, Chandler v. Rutland Herald Publishing, which upheld the lower courts' judgment in favor of the daily newspaper.
According to the 2015 Vermont Supreme Court decision, the plaintiff, Charles Chandler, “argued that [an] article was false and he raised claims of libel and intentional inflection of emotional distress.”
In the decision, the justices noted that the newspaper had no burden to show that the story was true, and that the plaintiff could not prove that the story was false.
“We agree with the trial court that Chandler's complaint arises from defendants' 'exercise, in connection with a public issue, of the right to freedom of speech,' which includes 'any written . . . statement concerning an issue of public interest made in a public forum,'” the decision reads.
At this point, it is unclear whether Rizzo will execute his civil action against Whitney and Dandelions. There is no question that the potential of legal action has been an intimidating factor for each woman.
They both have also made it clear that they intend to stand firm.
If they do, Vermont law might be on their side.