If you’ve been paying attention to the news recently, you’ve probably heard the name Jussie Smollett mentioned once or twice. Smollett is the actor from the Fox drama series, Empire, who faked an attack on himself that placed the blame on two brothers from Chicago, Abimbola “Bola” (also known as Abel) and Olabinjo “Ola” Osundairo, according to USA Today. Now, the Osundairo brothers are suing the actor’s legal team for defamation. 

USA Today reports that the brothers have filed a federal defamation lawsuit against Smollett’s legal team, which includes celebrity attorney Mark Geragos. 

“We have sat back and watched lie after lie being fabricated about us in the media, only so one big lie can continue to have life,” the Osundairos’ statement read, according to USA Today. “These lies are destroying our character and reputation… Anyone who knows us know we do not have hate, that is not who we are… We will no longer sit back and allow these lies to continue.”

Now, looking at the facts, why didn’t they just sue Jussie? Is it possible for them to win a defamation lawsuit against Jussie? Let’s consider what would happen if the Osundairos sued Jussie for defamation.

There are many factors that need to be considered. In Illinois, the statute of limitations for defamation cases is one year. This means that the Osundairo brothers needed to file this lawsuit within one year of when the defamatory act occurred, which they did. 

Additionally, they need to prove that the statement was made to a third party and that the defendant caused damage to the plaintiff’s reputation. This is something the brothers can prove since Smollett (and allegedly his legal team) clearly told this lie to numerous news publications given the media storm that surrounded his alleged “attack.”

Also, at the very least, they need to prove that the defendant was negligent or acted with actual malice. This means the brothers need to prove that Smollett made the statements of his attack with reckless disregard for the truth. So, unless Smollett is going to claim insanity, I definitely think a judge would find that he acted with actual malice. 

Last but not least, Illinois is a per se state. This means that the Osundario brothers have the option to sue for defamation per se, which is a type of statement that is inherently slanderous or libelous. If they can prove Smollett is guilty of defamation per se, they won’t need to prove damages to their reputation or well-being like they would need in a regular defamation case. 

Examples of defamation per se would be statements that accuse someone of engaging in criminal activity (which Smollett did), being a danger to people (also accurate for this case), calling into question the plaintiff’s ethics, and engaging in sexually immorality (which especially applies to this case). 

Smollett falsely accused the Osundario brothers of attacking him (danger to people), involvement in illegal steroid trafficking (engaging in criminal activity) and engagement in sex with Smollett (sexually immorality). This last false accusation is one that hits particularly hard for the brothers as they often visit their family in Nigeria where homosexuality is illegal and could result in a 14-year prison sentence, according to USA Today. 

Seeing as that Smollett accused the brothers of three if not all of the defamation per se examples, it doesn’t seem likely that he will get out of this. 

Smollett’s attorneys on the other hand, issued a statement speaking of the lawsuit as “comical” and “lawyer driven nonsense,” according to the Associated Press, adding that they predict the lawsuit will be dismissed because it “lacks any legal footing.” 

Suing a lawyer for defamation for something said in a public statement is possible, but has hurdles. Often times, the lawyer’s will be protected under a privilege defense — for example, if the lawyer made false statements in a pleading.  This privilege can also be abused, and form the basis for a defamation lawsuit. Often times a lawyer will also simply rely on the statements made by their client, and therefore, not be held personally responsible for their reliance on their client’s positions. This is a slippery slope, and the subject of a much larger topic (which we’ll cover later).

UPDATE: On Friday July 19th, 2019, Smollett’s attorneys filed a motion asking a judge to dismiss the defamation lawsuit filed by the Osundairo brothers. Smollett’s legal team is arguing that the brothers are using a tactic that attempts to limit free speech on a matter of public interest, citing California’s Anti-SLAPP laws that protect against retaliatory defamation lawsuits, according to Chicago Sun Times. California’s anti-SLAPP statute is designed to stop lawsuits that are designed to chill valid protected free speech, and which therefore, violate the First Amendment. 

California’s anti-SLAPP statute identifies the following four actions as protected “act[s] in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue”:  

“(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, 

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, 

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or 

(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” See California’s Code of Civil Procedure, § 425.16(e).

“The Smollett case is a very interesting one, for many reasons. I don’t know of many cases that have a similar fact pattern. For these reasons, it’s hard to say which way a court would rule on the California anti-SLAPP motion filed by Smollett’s lawyers,” says Raees Mohamed, Founding Partner of RM Warner Law, “Although the defamation case is pending in Illinois, the anti-SLAPP motion is being brought under California’s anti-SLAPP statute. I actually have a defamation case pending in the same Illinois U.S. District Court, but in front of a different judge. These are not easy motions to win. From a technical view, the motion tests how well articulated the complaint is, but also whether the lawsuit has legal merit, which is never typically done at this stage.  California’s anti-SLAPP statute can be fatal to a variety of defamation cases, and is one of the broadest anti-SLAPP statutes in the country. For example, courts have interpreted statements about a celebrity — or persons voluntarily associated with a celebrity — as being a topic sufficiently in the public’s interests, and therefore, protected by the anti-SLAPP statute. At first blush, this case would fall into this category. The more interesting part of this case, is the fact that Plaintiffs are suing Smollett’s lawyers for defamation, for public statements that were allegedly false. Smollet’s lawyers have also filed a separate motion for sanctions against Plaintiffs’ counsel, for bringing baseless claims that have no merit under the applicable law. Lots of moving parts here, so it should be interesting.”   

Stay tuned for updates. 

If you need legal assistance for internet defamation, whether in Illinois, or any other state or country for that matter, Contact the attorneys at RM Warner Law. We can help.