Posted on | September 26, 2011 | 149 Comments
This headline at ABC News is misleading:
It is misleading, because there is no “threat” in the letter. Rather, as Governor Palin’s lawyer John Tiemessen clearly states, the legal prerequisite for a defamation suit under Alaska law:
“[S]ince both your company, and the author, clearly knew the statements were false, admitted they had no basis in fact or reality, but decided to publish in order to harm Governor Palin’s family, you and Mr. McGinniss have defamed the Palins. This letter shall serve as written notice . . . that a claim may be brought against you, your company and Mr. McGinniss for knowingly publishing false statements.”
While I am not specifically familiar with Alaska’s libel law, I am familiar with libel law in general — as every journalist should be — and what Tiemessen has sent Random House is what’s known as a “demand letter.”
A publisher is put on notice by such a letter that the lawyer’s client considers himself the victim of libel. Notice of intent is required for several reasons. In the newspaper business, if somebody calls your office and bitches about a story, OK. But the minute they say “lawsuit” or “lawyer,” you end the conversation and refer them to the newspaper’s attorney. If the complainer is actually serious about a libel suit, their lawyer sends a demand letter, and the newspaper’s attorney then considers whether the complainer has a case. If the lawyer says retract, you retract.
Printing a retraction is a humiliating thing for a newspaper to do, but it’s cheaper than taking a libel suit to court. Retracting a book is not so easy, which is why book publishers have lawyers on retainer whose job is to vet manuscripts like McGinniss’s.
For many years, it has been part of my business to know the difference between the mere threat of a libel suit — threats are a dime a dozen — and such letters as Tiemessen has sent Random House. This is not a “threat,” and the executives at Random House damn well know it. They clearly failed to perform “due diligence” in fact-checking, and no cleverness in attributing lies to anonymous sources can protect them.
What the hell were they thinking, hiring a writer of such notoriously bad judgment that he would hang out with Jesse Griffin?
UPDATE: Thanks to the fine legal minds in the comments, one of whom informs me that Tiemessen’s letter is actually a “litigation hold,” a notice to a prospective defendant that he should preserve documents relevant to “anticipated litigation.”
Which is very close to “See you in court, buddy” — as I say, it’s not a mere threat. In the comments below, I explain that my knowledge of libel law is strictly operational: As a journalist, how do I avoid a libel suit? And, if I find myself threatened with such a suit, how do I deal with it?
Most of the time, I laugh off any mere threat of a libel suit. American libel law generally favors the defendant. A journalist has to screw up pretty bad to lose a libel case, particularly one where the plaintiff is a public figure per the Sullivan precedent. But (a) McGinniss has screwed up royally with his e-mail to Griffin, and (b) Sarah’s brother Chuck Heath Jr. is clearly not a public figure, nor are several other members of Palin’s family who might claim defamation in this case. So even if Sarah can’t win a trial case, Random House’s exposure doesn’t end there.
Question: Does this anticipated legal action indicate that Palin is planning to run for president, or does it indicate the opposite?
UPDATE II: Allahpundit has a rather dismissive attitude toward Palin’s prospects of winning a defamation suit, but he seems to be thinking like a lawyer rather than seeing this from the standpoint of the defendant (Random House), faced with clear proof from the Griffin e-mail that McGinniss’s book included what he knew to be unsubstantiated “tawdry gossip.”
McGinniss’s association with Griffin is very damaging to Random House. Griffin claims McGinniss said he was a “huge fan” of his Immoral Minority blog two months after Griffin was proven a liar with the bogus “divorce” rumor story. Why would McGinniss be cordially corresponding with a disgraced rumor-monger? Couldn’t the statement that McGinniss was a “huge fan” of such a person as Griffin be construed as evidence of malice toward Palin?
The two rules of thumb I was taught were, “When in doubt, leave it out” — that is to say, don’t publish something if you aren’t sure of its accuracy — and “If your mother says she loves you, check it out” — Don’t assume the truth of what people tell you.
Allahpundit’s comparison of Palin v. McGinniss, et al., to a Hollywood celebrity suing a tabloid is a poor analogy, given who Palin is and what McGinniss offers as the rationale for his book. McGinniss claims to have exposed Sarah Palin as a dangerous person unfit for public office, and the “tawdry gossip” in his book is part of his case against her.
That’s a helluva lot different, in terms of journalistic purpose, than what the Star or US Weekly might publish about a movie star’s divorce or a singer’s drug habits. Random House has promoted the McGinniss book as a work of serious investigative journalism about an important politician, and it is that alleged seriousness that would justify a Palin lawsuit.
UPDATE III: Both informative and funny:
Over the weekend McGinniss was reportedly complaining that even outlets like Olbermann, Maddow and NPR are canceling his scheduled appearances or refusing to have him on at all. The above might offer a clue as to why. Not many media suits right now are going to want to take part in helping push a bombing book that could end up as an expensive and/or embarrassing legal headache.
When even Rachel Maddow won’t help you promote your anti-Palin book, you’re clearly scraping a new low. At some point, I suspect, the Random House lawyers will tell McGinniss to shut up, lest he provide further evidence of malice for Palin’s lawsuit.
UPDATE IV: We have apparently attracted attention of some Palin Derangement Syndrome sufferers, including the vile Phil Munger, whose comments were deleted. You hideous monsters have plenty of bandwidth at Mudflats, etc., where you can spread your insane filth without being permitted to hijack my bandwidth. Wombat will be advised to wield the troll-hammer at his discretion.
- Sept. 24: The Joe McGinniss Method
- Sept. 22: SHOCKER: Joe McGinniss’s Credibility Destroyed by E-Mail to Jesse Griffin; UPDATE: Griffin Does Not Deny E-Mail
- Sept. 20: Creepy Joe: ‘Sarah Incites Hatred’
- May 29, 2010: Dave Weigel, Joe McGinniss, Jesse Griffin and the Palin-Hater Next Door