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Potential problems with Winston's lawyer tweeting accuser's name

Has Jameis Winston’s attorney, David Cornwell, broken the law by tweeting the name of Winston’s accuser?

In a tweet dated Tuesday, November 4 at 7:08 p.m., Cornwell complained that Florida State University gave Winston’s accuser 20 months to file a complaint, while Winston must quickly prepare for a university disciplinary hearing scheduled for November 17. Cornwell’s tweet, which as of this publication has neither been deleted by Cornwell nor taken down by Twitter, includes the last name of Winston’s accuser. This tweet has been retweeted over 300 times and has prompted sharp criticism by commentators, some of whom contend that Cornwell should face some sort of punishment.

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This is not the first time that Cornwell has publicly mentioned the accuser’s name, but most media outlets have declined to publish the name. It is standard practice for media, as well as for law enforcement, to redact the names of sexual assault victims. In some cases the law requires a victim’s name remain confidential. In other cases there is simply concern that disclosure of a victim’s name might lead to harassment of the victim or breach that victim’s privacy. Disclosure can also impede justice, since a victim may be less willing to come forward and testify if doing so will lead to public notice.

Social media like Twitter and Facebook, however, allow individuals an opportunity to disregard conventional practice and “name names.”

As detailed below, there are several areas of law that Winston’s accuser might explore in an attempt to hold Cornwell accountable. None are likely to work.

1. Florida’s Crime Victims Protection Act

Florida has enacted a statute designed to shield rape victims’ identities from the public. The Crime Victims Protection Act (“Act”) dictates that victims of sexual assault have a cause of action against persons who reveal victims’ identity prior to open judicial proceedings. A victim must also establish that the disclosure was intentional and highly offensive. If successful in proving the claim, a victim can receive monetary damages from the person who revealed her name.

At first glance, the Act would seem to protect Winston’s accuser, as proceedings have note yet occurred. Given the outrage over Cornwell’s tweet, there is also a plausible argument that his disclosure was highly offensive.

Upon closer inspection, however, Cornwell would possess powerful defenses.

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First, Cornwell would argue that Winston’s accuser is not a victim and thus not protected by the Act. Law enforcement declined to charge Winston and, through Cornwell, Winston has maintained his innocence. While Winston could still face charges under the relevant statute of limitations, the likelihood of charges at this point is low.

Second, Cornwell would stress that the identity of Winston’s accuser has been publicly known for over a year. A Google search of her name coupled with “Jameis Winston” shows numerous hits, including her name appearing on message boards and on Twitter. Reader comments accompanying articles published online also mention her name. Cornwell could thus insist that his tweet failed to cause any privacy harm.

Third, Cornwell would contend that the identity of Winston’s accuser is a topic of legitimate public concern and is also protected by the First Amendment. Cornwell would highlight the media’s enthusiastic interest in the allegations against Winston and thereby the newsworthiness of those allegations. Along those lines, Cornwell would portray Winston’s accuser as contributing to, if not causing, her need for privacy. He would dismiss the accuser’s allegations as false and designed to inflame public opinion.

Lastly, Cornwell would stress that his job is different from journalists and law enforcement. He is Winston’s attorney, and thus has a professional obligation to ensure that Winston is treated fairly and justly. An accused’s right to confront his accuser is a hallmark of our criminal justice system. By revealing the name of Winston’s accuser, Cornwell can assert that he is acting in accordance with his duties as a defense attorney.

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2. Invasion of Privacy

Winston’s accuser might also consider an invasion of privacy claim against Cornwell for public disclosure of private facts. This would be a difficult claim to raise, since courts generally regard facts that are of legitimate public concern to fall outside of protected facts. Plus, courts broadly interpret “legitimate public concern” to include the vast majority of stories in the news. Then again, considering that law enforcement and most media have shielded the accuser’s name, name might not be of legitimate public concern.

3. Defamation

It would be a stretch to argue that Cornwell’s tweet constitutes defamation. Even if the tweet, by naming Winston’s accuser, damages the reputation of the accuser, it is nonetheless truthful: the tweet correctly identifies the last name of the person accusing Winston of rape. This is important because truth is an absolute defense to defamation.

As to Cornwell tweeting that Florida State University gave the accuser 20 months to file a complaint, the statement seems plausible given the known timeline in this Winston controversy. Even if 20 months exaggerates the actual amount of time the accuser received, the mistake likely would not provide a persuasive defamation claim for the accuser. Dates are often the subject of debate in litigation.

Also, Winston’s accuser is arguably a public figure by this point, even if most people don’t know her name. If she is a public figure, she would face an added hurdle to prove a defamation claim: she would have to show that Cornwell defamed her with actual malice, meaning that Cornwell intended or had clear knowledge the accuser would be defamed by her name appearing on his Twitter page.

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The problem with this type of reasoning is that Twitter has not suspended Cornwell’s account or taken any apparent steps against him. Cornwell thus seems well poised to argue he lacked malice in his tweet. Moreover, the accuser’s name, photo and other identifying characteristics have appeared on other Twitter accounts for over a year. It is unknown if the accuser or her attorneys have requested that Twitter remove tweets containing her name. If such a request hasn’t been made, it would undermine a claim against Cornwell for engaging in the same practice on Twitter.

4. False Light

A false light claim against Cornwell would likely also fail. False light refers to a true, but very misleading, published statement that damages a person’s reputation. Perhaps Cornwell’s inclusion of the accuser’s name was designed to mislead the public into believing that it is acceptable to use her name. This type of reasoning is speculative at best. Plus, the Florida Supreme Court recently rejected false light as a viable cause of action.

5. State Bar Discipline for Unethical Conduct

Cornwell is admitted to practice law in Georgia, New York and California. As a member of those states’ bars, he is obligated to adhere to ethical standards.

Cornwell’s accuser could accuse Cornwell of acting unethically by expressing her name on Twitter. Attorneys found to have engaged in unethical practices can be suspended and, in extraordinary situations, even disbarred.

In response to any bar complaint, Cornwell would insist that he is simply doing his job. He has been retained to zealously advocate for Winston in defense of accusations that he raped a woman. This same client faces a university disciplinary hearing that, as I have explored on, raises serious questions about fairness and due process. Cornwell contends that these are false allegations by a real person whose name, Cornwell would argue, should be known. Some attorneys, especially criminal defense attorneys, would be sympathetic to such a defense by Cornwell.

Bottom line: Cornwell’s tweet may have been inappropriate, even obnoxious, but it probably was lawful and likely designed to advance his client’s interests.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.