By Celia Ampel, From Daily Business Review

The Miami attorneys defending “Empire” creator Lee Daniels in a defamation suit filed by actor Sean Penn are not deterred by Madonna’s affidavit swearing the actor never assaulted her.

“The fact that Penn felt the need to replace his initial complaint with a new filing is an undeniable concession that he viewed his original complaint as a loser,” said James Sammataro, a Stroock & Stroock & Lavan partner in Miami who represents Daniels. “We don’t believe the new iteration will fare any better as it does not change the fact that the statement is an opinion protected by the First Amendment.”

Penn sued Daniels in September, claiming Daniels defamed him in an interview with the Hollywood Reporter about domestic violence accusations against “Empire” star Terrence Howard.

Terrence “ain’t done nothing different than Marlon Brando or Sean Penn,” Daniels said in the article. “That’s a sign of the time, of race, of where we are right now in America.”

Penn’s lawyers, Greenberg Traurig attorneys Mathew S. Rosengart in Los Angeles and Anne C. Reddy in New York, allege the comments imply the two-time Oscar winner “is guilty of ongoing, continuous violence against women.”

“Unfortunately for Daniels, his statements — which by direct reference to Howard’s misconduct, falsely accuse Penn of committing serious, multiple crimes against women — are not protected by the First Amendment,” Rosengart said Friday. “As Justice Oliver Wendell Holmes famously observed almost 100 years ago, the First Amendment is not absolute. Just as it does not protect a person from shouting ‘fire’ in a crowded theater, it also does not protect defamatory conduct.”

In an amended complaint filed Thursday, Rosengart said the affidavit provided further support for Penn’s assertion that he has never physically abused any woman, including his ex-wife Madonna.

“Sean has never struck me, ‘tied me up’ or physically assaulted me, and any report to the contrary is completely outrageous, malicious, reckless and false,” the superstar singer wrote in a sworn statement attached to the amended complaint.

Sammataro and Stroock associate Jose Garcia-Tuñon represent Daniels in the New York state court dispute. They argue Daniels’ statement is protected by the First Amendment, and his use of the past tense means he cannot be referencing “ongoing, continuous violence.”

“With fame, money and high-priced legal counsel, Penn has the power to buy most things,” the attorneys wrote in a memorandum of law filed earlier this month. “Fortunately for Daniels, the First Amendment is not for sale. It protects Daniels and others from lawsuits like this one, financially draining attacks brought to punish free speech exercised to Penn’s chagrin.”

They also argue Daniels’s statement “could not have harmed [Penn’s] already tarnished reputation on the topic of domestic abuse,” listing several news articles with headlines such as “Is Madonna still in love with Sean Penn, the man who beat her up with a baseball bat?”

Because Penn is a public figure, he will have to meet the actual malice standard set in New York Times v. Sullivan. To win his case, Penn would have to show Daniels knew his comments were false or made them with reckless disregard for the truth.

IMAGE: Madonna Gareth Cattermole

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