Posted on | September 12, 2012 | 13 Comments
Lee Stranahan is already pursuing legal action against Bill Schmalfeldt, aka “Liberal Grouch,” a blogger who apparently decided to make his bid for online immortality by assisting the attacks on enemies of what I’ve called the Kimberlin-Rauhauser axis.
Stranahan says Schmalfeldt has made grievously defamatory accusations against him, the accuracy of which Stranahan disputes, and the case has already proceeded far past the point that a wise lawyer would advise Schmalfeldt to exercise his constitutional right against self-incrimination. One does not defend oneself in such a dispute by “doubling down” with further accusations against the plaintiff and — important point — the plaintiff need not be wholly innocent in order to do you damage, especially if it can be proven that the defendant is motivated by malice.
All of which is a necessary preamble to this:
Every editor in Christendom just drew a sharp breath at this folly. Reporters know to be very careful in describing their sources, especially if they are engaged in what a lawyer once described to me as “asserting private knowledge.”
Now, Stranahan says he has been falsely defamed by Schmalfeldt. What would be Schmalfeldt’s motive to do so? What did Stranahan ever do to Schmalfeldt that would inspire this?
Stranahan’s attorneys might reasonably suggest to a court that the source of the misidentified photos — “someone I trust” — is someone who bears a grudge against Stranahan, and who has been feeding defamatory information to Schmalfeldt, thereby using Schmalfeldt as the agent (witting or unwitting, it makes no difference) of a personal vendetta.
And because this particular material — the misidentified photos — is admittedly false, then the source of this false material cannot be protected under a First Amendment claim. As long as Schmalfeldt’s attacks on Stranhan consisted of true and accurate facts, he could not be compelled in discover to reveal his sources for these materials. Once he published a clear falsehood and said that this falsehood originated with “someone I trust,” then the identity of that trusted source is directly material to any case Stranahan may bring against him, because it at least seems to suggest that Schmalfeldt may be acting as the agent of a third party in his attacks on Stranahan.
When I tried to explain this to the thick-headed Schmalfeldt, he seemed incapable of comprehending his error. Well, said he, I have retracted the falsehood, which was not libelous.
Yes, but insofar as you have revealed that you are not doing your own research, but are relying on the work of “someone I trust” — now proven to be unreliable — then it is reasonable for Stranahan to suspect that every other accusation you’ve made against him, whether true or false, originated with this same source.
There must be some reason Schmalfeldt’s source was concealing himself — i.e., using Schmalfeldt as a proxy, rather than making this claim under his own name — and this erroneous claim to have photos of Stranahan’s wife is just the sort of seemingly minor mistake that can sink a defendant in a libel case. The plaintiff’s lawyer starts pulling at that one tiny thread, and the whole sweater might come unraveled.
Advice to Bill Schmalfeldt (and to any other journalist paying attention): Be careful about jumping into purely private disputes, and claiming to “know” things about the disputants that cannot be clearly demonstrated from publicly available materials.
Whatever made Schmalfeldt decide to start attacking Stranahan, at some point during his attack, Schmalfeldt was relying on an unreliable third party as a source for private information.
Readers will recall that in June, Screed of Momus published what was asserted to be information from an interview with Neal Rauhauser’s ex-wife. This was the exact sort of thing that I would never publish myself. I think no reporter of any experience would touch a story about allegations in a divorce or a custody dispute without actual documentation — transcripts of depositions, etc. But Screed of Momus did publish it, and we’ve seen nothing in the past two-and-half months contesting that report, which thus acquires credibility simply by the lack of rebuttal.
At the same time, however, any reporter would be unwise to claim to know — independently of that source — anything about the marriage and divorce between Neal and Nancy Rauhauser. This is what attribution is all about, and is why relying on anonymous sources is so inherently risky, which is where the “two source” rule comes in. There have been times in the past where I’ve been lied about, and have not bothered to disprove the lie, knowing that if someone should then try to attack me with secondhand lies of which they have no direct knowledge, I could then destroy them. All of which is by way of caution.
No one’s paying me to teach a seminar, however, and if Schmalfeldt is taught a lesson, it will not be my lawyers who do the teaching: He has zero credibility, there is no reason anyone should believe anything he says about anyone and, heeding the sage advice of Andrew Jackson’s mother, I’ve never sued anybody for libel or slander.
But I keep thinking about the interrogatories filed against Brett Kimberlin in the Aaron Walker case:
There will be a hearing on the Motion to Compel Discovery on Friday, 14 September.
Hmmm. What if I told you that Kimberlin has invoked his Fifth Amendment protection against self-incrimination — a most unusual claim in a civil lawsuit — in attempting to avoid discovery? And what’s this?
The name redacted in Exhibit B is that of someone who was a minor child at the time of the events in question.
Exhibit B? Question 11? Fifth Amendment?
Just asking questions . . .