But the famed attorney is preparing to sue ViacomCBS and the producers of the CBS All Access legal drama for referring to him in the final episode of the show’s fourth season as a “shyster” in connection with his representation of the convicted sex offender Jeffrey Epstein. Epstein, who was convicted of soliciting sex with underage girls in 2008, committed suicide last year while in federal prison as he awaited trial on new sex trafficking charges.
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Dershowitz’s lawyers on July 17 sent a letter to CBS, “Good Fight” co-creators and showrunners Robert King and Michelle King and others connected with the show demanding the CBS All Access stop airing the content in question, a retraction of the statement and a public apology.
“Clearly, the dialogue and the context in which it is made, with words loaded with innuendo such as ‘massage,’ ‘Epstein,’ the ‘Virgin Islands,’ in combination with the word ‘shyster,’ falsely suggests that Professor Dershowitz engaged in sexual conduct, i.e. a ‘massage,’ with an underage girl associated with Epstein, and is crooked, unscrupulous and lying about it, i.e. a ‘shyster,’ ” Ansari wrote.
Jonathan Anschell, ViacomCBS Media Networks executive VP and general counsel responded with a letter sent July 28 that outlined CBS’ defense of the episode and its references to Dershowitz.
“In other words, as one might explain to a small child, the Series, its characters and the things they say are all make-believe. People don’t watch the Series for factual information about Professor Dershowitz or anyone else,” Anschell wrote.
In the episode “The Gang Discovers Who Killed Jeffrey Epstein,” which debuted May 27, fictional criminal defense attorney character Benjamin Dafoe (played by guest star David Alford) is depicted as having previously represented Epstein before Dershowitz.
The episode makes several references to Dershowitz in connection with Epstein. Ansari’s letter focuses on one exchange that the Dafoe character has with lawyers Diane Lockhart (Christine Baranski) and Liz Reddick (Audra McDonald) about losing Epstein as a client. In the most meta-legal sense, the dialogue anticipates real-life legal action from Dershowitz.
“Probably about the time he ditched me for Dershowitz. At least I didn’t get a massage, like that shyster. And for the purposes of any potential lawsuit ‘shyster’ is just my opinion not a statement of fact,” the Dafoe character states.
Dershowitz told Variety that “Good Fight” and other contemporary dramas that weave fictional characters and real-life public figures into their stories are treading on shaky ground when it comes to defamation concerns.
“The idea that a fictional character can get away with defaming somebody is really a new one,” Dershowitz said. “You either have to have an entirely fictional account in which they make up the names of everybody or a truthful account. You can’t mix the genres. When you do mix the genres, the law of defamation applies.”
Ansari’s lawyer notes that the decision to include a “just my opinion” into the Dafoe character’s dialogue only adds to ViacomCBS’ that the show was aware that the statement was defamatory.
“It is indicative that CBS knew the statements were defamatory, yet sought, albeit weakly, to skirt liability, and it is akin to showing ‘a consciousness of guilt,’ ” Ansari wrote.
Anschell’s letter notes that Dershowitz himself has acknowledged that he once received a massage at one of Epstein’s homes. “In fairness, Professor Dershowitz claimed that he ‘kept [his] underwear on during the massage.’ A more benign mental image than what the mind might otherwise conjure, so at least there’s that,” Anschell wrote.
As for the use of the term “shyster,” Anschell defended it as a spoken by a fictional character and expressly phrased as opinion. He cites as legal support the recent dismissal of a lawsuit against FX Networks brought by movie legend Olivia de Havilland, who objected to her depiction in the 2017 limited series “Feud: Bette and Joan.”
“We’re confident that no viewer would conclude that Professor Dershowitz is a shyster based on one line of opinion from a fictional character on the Series, as opposed to the real-life, factual publications that have called him exactly that,” Anschell wrote.
Dershowitz noted that legal issues stemming from a blend of fact and fiction are also the crux of the lawsuit filed in March by former Manhattan prosecutor Linda Fairstein against Netflix over her depiction in the 2019 limited series “When They See Us,” about the wrongful convictions of five Black men who became known as the Central Park Five.
Dershowitz said he will take his battle against “Good Fight” to court if ViacomCBS continues to balk at his demand for an apology and a retraction, even though he is generally a fan of the stylish drama revolving around legal eagles in Chicago. “My family and I have watched it and enjoyed it,” he said.
Dershowitz has come in for strong criticism for his association with Epstein, who faced horrifying allegations that he was a serial predator of underage girls. Dershowitz has been sued by an Epstein victim who has accused him of sexual misconduct, which he has vehemently denied. Last November, Dershowitz countersued Virginia Giuffre, saying her claims had caused him “severe emotional distress.”
Dershowitz vowed to press his case against ViacomCBS and “Good Fight” as a matter of principle.
“I’m an honest and honorable lawyer who represents controversial clients that people don’t like,” Dershowitz said. “Nobody’s going to call me a shyster and get away with it. If the people at CBS are decent people they will issue an apology and withdraw the episode or that part of the episode. If they don’t I’ll see them in court.”
Here is the full letter from Dershowitz’s lawyer and ViacomCBS’ response:
Re: The Good Fight — “The Gang Discovers Who Killed Jeffrey Epstein”
Dear Sir or Madam: Please be advised that this firm is litigation counsel for Alan Dershowitz (“Professor Dershowitz”). We have been retained to address defamatory statements made during an episode of CBS All Access’ The Good Fight, titled “The Gang Discovers Who Killed Jeffrey Epstein,” which originally aired on May 28, 2020 (Season 4, Episode 7). Professor Dershowitz requests that CBS promptly retract the defamatory content, and issue a public apology to Professor Dershowitz.
In the episode, a character intended to be Jeffrey Epstein’s fictious prior attorney “Benjamin Dafoe” played by actor David Alford, makes the following statement:
“Probably about the time he ditched me for Dershowitz. At least I didn’t get a massage, like that shyster. And for the purposes of any potential lawsuit shyster is just my opinion not a statement of fact.”
The statement, in whole and in part, is tortious and constitutes both defamation per se and defamation by implication. The episode in question is centered on the criminal allegations made against Jeffrey Epstein and his ultimate death. Clearly, the dialogue and the context in which it is made, with words loaded with innuendo such as ‘massage,’ ‘Epstein,’ the ‘Virgin Islands,’ in combination with the word ‘shyster,’ falsely suggests that Professor Dershowitz engaged in sexual conduct, i.e. a ‘massage,’ with an underage girl associated with Epstein, and is crooked, unscrupulous and lying about it, i.e. a ‘shyster.’ The language of the whole piece can be “reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.” (See e.g. Watson v NY Doe 1, 439 F Supp 3d 152 [SDNY 2020]; Agbimson v Handy, 17 CV 9252 [SDNY Aug. 14, 2019]).
Furthermore, use of the term “shyster” to describe Professor Dershowitz is defamation per se. The term “shyster” is defined as follows: “a person who is professionally unscrupulous especially in the practice of law…” and “a rascally” lawyer; one that is “shrewdly dishonest.” Some even attribute an anti-Semitic connotation to the term. CBS’s use of the term “shyster” to describe Professor Dershowitz is a direct attack on his professional reputation as an attorney and professor of law. A statement that is a “direct attack upon the business, trade or profession of the plaintiff is considered defamation ‘per se.’ ” (Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 180 [2d Cir. 2000] [quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts 112, at 791 [5th ed. 1984] “[I]t is actionable without proof of damage to say … of an attorney that he is a shyster … since these things discredit [one] in his chosen calling.”)
Lastly, rather than absolve the defamatory statements, the line that the statement regarding Professor Dershowitz is an “opinion” , has the opposite effect: it is indicative that CBS knew the statements were defamatory, yes sought, albeit weakly, to skirt liability, and it is akin to a showing of “consciousness of guilt”. (See e.g., Immuno AG. v Moor-Jankowski, 77 NY2d 235, 242-43 ; Alianza Dominicana, Inc., v. Luna, 229 A.D.2d 328 ) Therefore, with this evidence of knowing and/or reckless disregard for the truth, Professor Dershowitz will easily be able to prove actual malice in connection wit the publishing of this defamatory content. (See e.g., New York Times Co. v. Sullivan, 376 U.S. 254 )
We are extended an opportunity to resolve this matter without litigation. Professor Dershowitz requests that CBS promptly retract the defamatory content, cease and desist from further airing the defamatory content, and issue a public apology to Professor Dershowitz. Please have your legal representative contact our office to discuss further.
Very Truly Yours,
Imran H. Ansari, Esq.
Here is ViacomCBS’ response:
Re: The Good Fight / Alan Dershowitz
Dear Mr. Ansari:
Your letter of July 17 to Laura Franco and others (including Michelle and Robert King) has been forwarded to me for response. If we understand your letter correctly, you are complaining about a line spoken by a fictional character, in an episode of the fictional series “The Good Fight” (the “Series”). You make this complaint on behalf of Professor Alan Dershowitz, a public figure who has long been associated with Jeffrey Epstein, and who has admitted on television to receiving a massage from a woman at Epstein’s mansion. In the non-fictional world, these factors require us to decline your request that we withdraw the episode, and our correspondence could end right here. Nevertheless, out of respect for Professor Dershowitz, we explain more fully below.
The Series is a highly-acclaimed scripted drama that streams on CBS All Access, a subscription-only streaming service that offers episodes of shows on an on-demand basis. By every measure, the Series is a work of fiction, and it has been praised for “its playful embrace of surrealism,” (The Guardian, May 14, 2019) and as an example of “full-bodied entertainment: brainy, gutsy, a little love crazy.” (Los Angeles Times, February 19, 2017). The character whose lines you cite in your letter is made-up as well. Benjamin Dafoe is not a real lawyer; on the Series, he’s Epstein’s “fictitious prior lawyer,” as your letter acknowledges. In other words, as one might explain to a small child, the Series, its characters and the things they say are all make-believe. People don’t watch the Series for factual information about Professor Dershowitz or anyone else.
Although the Series is a work of fiction, its writers strive for accuracy when referring to people or events from the real world. When it comes to Professor Dershowitz getting a massage at Epstein’s house, the writers were spot-on. In a televised interview broadcast on WPLG-TV in Miami on April 17, 2019, Professor Dershowitz admitted on camera that he got a massage from a woman at an Epstein mansion. In fairness, Professor Dershowitz claimed that he “kept [his] underwear on during the massage.” A more benign mental image than what the mind might otherwise conjure, so at least there’s that.
With the Professor’s massage at Epstein’s place now beyond dispute, we’re left with one word you don’t like – “shyster,” spoken by a fictional character and expressly phrased as opinion. As your own case authority holds, the law does not impose liability for expressions of opinion, in contrast to verifiably true or false statements of fact. Immuno AG v. Moor Jankowski, 77 NY2d 253, 254 (1991). For this reason, the court in Immuno AG affirmed summary judgment for the defendant, finding that the context of a letter to the editor in a trade journal contained protected opinion. Id.
The same is true in the context of a comment on a fictional show. De Havilland v. FX Networks, LLC, 21 Cal. App 4th 845 (2018) (dismissing Olivia De Havilland’s false light claim, because “[v]iewers are generally familiar with dramatized [shows] in which scenes, conversations, and even characters are fictionalized and imagined.”) We’re confident that no viewer would conclude that Professor Dershowitz is a shyster based on one line of opinion from a fictional character on the Series, as opposed to the real-life, factual publications that have called him exactly that. See, e.g.., “From Scholar to Shyster, Alan Dershowitz Does Revisionist Law, Disowns His ‘1998 Off-the-Cuff Interview’” (PolitiZoom, January 21, 2020).1
We appreciate your bringing Professor Dershowitz’s concerns to our attention, and we hope our explanation puts those concerns to rest. Of course, this is not intended as a full statement of our position or as a waiver of any rights, remedies or defenses, all which we respectfully reserve.
Very truly yours,
Although nobody takes “shyster” as a compliment, we cannot agree with your assertion that the word is anti- Semitic. The same allegation has been debunked elsewhere, including in the New York Law Journal’s review of the history of the term, which concluded that “shysters come in different religions.” (“Is ‘Shyster’ Anti-Semitic,” New York Law Journal, May 21, 2003).
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