“Dismissal is required because the core of the complaint – that Daniels wronged Penn by falsely comparing Penn to someone else – is constitutionally (to quote Penn’s iconic movie character Jeff Spicoli) ‘bogus,’ ” said Lee Daniels today in response to the latest version of Sean Penn’s $10 million defamation suit against the Empire co-creator. “The First Amendment protects all comparisons, even comparisons to paragons of criminal and evil: Charles Manson and the Nazis,” a memorandum of law accompanying the motion to dismiss or strike Penn’s first amended complaint of late last year said today (read it here). “Penn’s defamation claim additionally fails because Penn can neither plead with specificity nor produce any evidence of actual malice.”

In a case that has bounced from New York state court to federal court and back again and has seen Penn’s ex Madonna jump in too, the Mystic River actor first hit Daniels with a big bucks jury seeking complaint in late September 2015. “As a result of Penn’s status as a public figure, he has for years been the subject of scandalous, scurrilous, and baseless attacks,” said the euphuistic suit. In Tuesday’s filings, Daniels and his attorneys also cite California’s Anti-SLAPP laws statute protects the Empire EP’s remarks. In fact, Daniels not only wants the FAC struck but Penn to pay his legal costs.

EmpireThe initial filing from Penn last year came not long after The Butler director in a Hollywood Reporter interview seemingly equated a double standard based on race out of the media response Empire star Terrence Howard had received from past run-ins with law and domestic violence accusations. Specifically, Daniels was nodding towards Penn’s behavior back in the 1980s, when the El Chapo interviewer was married to Madonna. He “ain’t done nothing different than Marlon Brando or Sean Penn, and all of a sudden he’s some f*ckin’ demon,” Daniels said of Howard. “That’s a sign of the time, of race, of where we are right now in America.”

To meet the high bar of defamation, Penn and his primary attorney Mathew Rosengart of L.A.’s Greenberg Traurig need to show that Daniels knew that what he was saying was false at the time. That’s a tough standard considering the widespread and decades old familiarity with his alleged behavior that Penn himself acknowledged in his initial complaint. “Daniels falsely equates Penn with Howard, even though, while he has certainly had several brushes with the law, Penn (unlike Howard) has never been arrested, much less convicted, for domestic violence, as his ex-wives (including Madonna) would confirm and attest,” said Penn last fall.

“Penn is incapable of establishing that Daniels uttered his opinion with knowledge of probable falsity, as the Challenged Statement is pre-dated by decades of spine-chilling accounts of Penn’s alleged violent abuse of his ex-wife Madonna,” says today’s filing, citing the declaration from Madonna supporting her ex-husband that accompanied the FAC last year. Rhetorically, Daniels’ paperwork asks “why neither Penn nor Madonna cried defamation and sued any of these prior publications.”

Some of this might seem very familiar. It is.

NBC's "2015 iHeartRadio Music Awards" - Roaming ShowIn early December last year, the Oscar nominated Daniels first sought to have the initial complaint from the Oscar winner dismissed  Daniels also claimed then his comments were protected by the First Amendment. Not so, said Penn in his first amended complaint of December 17 – to which a short declaration from Madonna was attached. “As Justice Oliver Wendell Holmes famously observed almost 100 years ago, the First Amendment is not absolute,” said Penn’s new complaint. “Just as it does not protect a person from ‘shouting fire in a crowded theatre,’ it also does not protect defamatory conduct.” In her attached declaration, Madonna noted she was “aware” of reports of Penn assaulting and abusing her and called them “completely outrageous, malicious, reckless, and false.”

Countering that in someways, today’s motion was accompanied by a slew of exhibits from Madonna’s own Instagram account to excerpts from books and articles detailing Penn’s alleged violent behavior towards his ex in the past. Penn’s lawyer calls it all legal window dressing. “The Madonna Affidavit that we filed in December conclusively and incontrovertibly demonstrates that Daniels’ statements were false, reckless, and defamatory,” said Rosengart today of Daniels’ filings. “Significantly, he doesn’t even try to address that document, because he can’t.  The motion represents a sophomoric, and desperate, effort to stave off a trial, which we look forward to conducting, in order to hold Daniels liable for his egregiously reckless and defamatory statements.”

Last month, Daniels withdrew his previous motion to dismiss the case because of Penn’s new version of the complaint had been put before the court and thereby superseded the first filing

James Sammataro of the Miami offices of Stroock & Stroock & Lavan LLP represents Daniels in the matter.