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Lee Daniels fired back at Sean Penn’s $10 million defamation suit against him, contending that the actor was engaging in “financially draining attacks brought to punish free speech exercised to Penn’s chagrin.”

At issue is a comment that Daniels, co-creator of Fox’s hit series “Empire,” gave to the Hollywood Reporter in which he compared legal troubles faced by “Empire” star Terrence Howard to those faced by other actors.

Daniels said Howard “ain’t done nothing different than Marlon Brando or Sean Penn, and all of the sudden he’s some f—in’ demon. That’s a sign of the time, of race, of where we are right now in America.”

Penn sued, contending that Daniels had falsely accused him of hitting women.

In a motion to dismiss the lawsuit, Daniels contends that what he said was “constitutionally protected opinion” and that “in that it is an assault on the First Amendment and New York’s Constitution,” the litigation should be thrown out. He also contends that Penn failed to show he made the remarks with actual malice, the legal threshold for defamation when it comes to public figures.

Daniels’ response was filed on Thursday in New York Supreme Court. He is represented by James Sammataro of Stroock & Stroock & Lavan.

Daniels also challenges the notion that Penn’s reputation was impaired by his remarks, contending that “accusations of misconduct have trailed Penn for decades.”

“The public has long associated Penn with domestic abuse, if not outright guilty of vicious actions of violence. The public domain is saturated with tales of Penn’s alleged violent acts.”

Daniels’ response cites accounts from books such as Christopher Andersen’s “Madonna Unauthorized” and J. Randy Taraborrelli’s “Madonna: An Intimate Biography” in recounting Penn’s alleged physical abuse of former wife Madonna. It even cites Twitter reaction to a “poorly received” green card joke that Penn made at the Oscars this year, eliciting a story about Penn’s alleged abuse in the Daily Beast.

“While Penn may have personally experienced the challenged statement as offensive, he must now demonstrate that the statement is reasonably susceptible to defamatory meaning,” Daniels’ response reads. “He has not, and cannot. The challenged statement is constitutionally protected opinion, and New York courts have repeatedly emphasized the need to summarily reject defamation claims brought to bully those who dare exercise their constitutional right of free speech.”

Daniels’ response contends that Penn, in his lawsuit, exaggerated what Daniels said and took it to mean that Penn was guilty of “ongoing, continuous violence against women.”

Moreover, Daniels argues that he was making a comparison, which is “invariably an opinion incapable of sustaining a defamation claim.”

Daniels also notes that the Hollywood Reporter article describes the allegations against Howard — to whom the comparison was made — as “just that, allegations.”

“Because the challenged statement — like the article itself — is devoid of any provably false factual assertion regarding either Howard or Penn, there is no readily verifiable statement,” Daniels response states.

His response adds that the statement “does not accuse Penn of any specific act and is devoid of any statement that is either precise or provable enough to qualify as an assertion of fact.”

Penn’s lawsuit said that Daniels’ statements were “egregious” on several levels, including that “in his purported ‘defense’ of Howard, Daniels not only appears to acknowledge Howard’s guilt, he also seems to condone Howard’s reported misconduct.”

Penn claimed that “in purporting to ‘defend’ the ongoing legal and related troubles of actor Terrence Howard … who has reportedly, and publicly, admitted to physically abusing at least one woman and reportedly been arrested approximately five times for violent acts against women — Daniels has falsely asserted and/or implied that Penn is guilty of ongoing, continuous violence against women. Nor has Penn admitted to ‘slap[ping]’ a woman or abusing others (as Howard has also reportedly admitted, reportedly asserting that he was acting in self-defense).”

The complaint included a citation to a 2001 Whitemarsh Police Department report from a domestic disturbance, quoting Howard as admitting to an officer that he “broke the door down and hit my wife.”

But Daniels countered that the context of his remarks was a discussion of race and of Howard’s “receipt of imbalanced media coverage” as a “sign of the time, of where we are right now in America.” Those statement, Daniels’ filing states, are a “pragmatic expression of an opinion, on in which the First Amendment fiercely protects.”


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