UPDATED: Oct. 21, 10:35 p.m.

New York state’s high court on Tuesday unanimously reversed two prior decisions throwing out a defamation lawsuit against Jim Boeheim, ruling his comments that two former Syracuse ball boys were lying about being sexually abused to get money were not opinions protected under free speech.

In a 16-page decision, Judge Jenny Rivera wrote that at the early stages of the lawsuit when it was thrown out, Boeheim’s comments could have had a “defamatory connotation.” Thus, the court ruled former ball boys Bobby Davis and Mike Lang have a “reasonable” claim to recover damages for defamation. The case will now be sent back down to the lower trial court.

The court’s decision was 6-0, with five other judges concurring with Rivera. Judge Eugene Pigott did not take part in the decision.

Davis and Lang sued Boeheim, the head men’s basketball coach, and Syracuse University on Dec. 13, 2011, after he called the stepbrothers liars who were out to get money for alleging they were sexually abused by a former associate head men’s basketball coach.

That former coach, Bernie Fine, was fired from SU on Nov. 27, 2011. He has denied all wrongdoing and was not charged following a yearlong federal investigation.

A state Supreme Court justice on May 11, 2012, threw out the lawsuit, ruling that Boeheim’s comments were opinions protected under free speech. That decision was upheld 3-2 on Oct. 4, 2013, by an intermediate state appellate court in Rochester. Oral arguments before the Court of Appeals — the highest court in New York state — were held on Sept. 9.

Senior Vice President for Public Affairs Kevin Quinn said in a statement that SU is still reviewing the decision. The understanding, he said, is the case will be returned to the lower trial court, “at which point we will assess our options going forward.” SU’s attorney, Helen Cantwell, did not return two phone calls on Tuesday.

Celebrity attorney Gloria Allred, one of the lawyers representing Davis and Lang, said in a statement that the court’s decision is a “great victory” and that they are looking forward to proceeding with the lawsuit.

Rivera wrote in the decision that a person cannot be held liable for an opinion — which, unlike statements, cannot be proven false. But if an opinion is based in facts the “reasonable reader” does not have access to, then it can be considered defamatory. It’s up to courts to decide if something is opinion or fact, she wrote.

The court took three factors into consideration:

— If the statement has a “precise meaning” that is “readily understood”

— If the statement can be proven true or false

— The broader social context of the statement

Boeheim used “specific, easily understood language” in calling Davis and Lang liars who were out to get money, she wrote. The second part of his statement “weights heavily in favor” in making Boeheim’s comments something that can be proven false.

He is also a well-respected member of SU and the community, Rivera wrote. Boeheim also spoke with authority and made references to Davis’ allegations and the university’s 2005 investigation before SU released a statement about them.

Though Boeheim added “I believe” before some of his comments, Rivera wrote this phrase is not enough to make something an opinion. His comments were also not in an op-ed or letter to the editor, which “encouraged” the reader to be less skeptical.

Vincent Bonventre, a professor at Albany Law School who frequently comments on the Court of Appeals, said it simply ruled that Boeheim’s statements were not opinions — meaning he could later be found liable for defamation.

“The Court of Appeals is not saying that Boeheim defamed Davis. They’re not saying Davis should win the lawsuit,” Bonventre said. “All they’re saying is whatever Davis said in his papers when he started his lawsuit — if that turns out to be true — Boeheim could be responsible for defaming Davis.”

Bonventre said the Court of Appeals tends to be more protective of free speech rights than the U.S. Supreme Court. And if someone had just told him that Boeheim could be liable for defamation, he’d be surprised. But looking at the decision, he said, you can see “what the court is getting at.”

The defamation lawsuit against Boeheim and SU is one of two remaining legal matters remaining from the fallout of the Fine allegations. In a separate case, Fine’s wife, Laurie Fine, is suing ESPN Inc. for defamation over its reporting on the case in federal court.

Published on October 21, 2014 at 10:22 am

Contact Dylan: dmsegelb@syr.edu | @dylan_segelbaum