The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Not a ‘Threat’: Palin Lawyer Gives McGinniss, Random House Legal Notice

Posted on | September 26, 2011 | 149 Comments

This headline at ABC News is misleading:

Sarah Palin Threatens to
Sue ‘Rogue’ Book Publisher

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.

Linked by Don Surber, Bob Belvedere at The Camp of the Saints, the Neosexist, the Lonely Conservative and Ed Driscoll — thanks!

Question: Does this anticipated legal action indicate that Palin is planning to run for president, or does it indicate the opposite?

UPDATE IIAllahpundit 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.



149 Responses to “Not a ‘Threat’: Palin Lawyer Gives McGinniss, Random House Legal Notice”

  1. MathMom
    September 27th, 2011 @ 12:01 pm

    MacDonald won a $300,000 judgement, but now that Palin is wealthy I’ll bet she’s going to dig for WAY more than $300,000.   If I were her I’d go for multiple millions.  $10 mill minimum.  When you lie about a person who’s reasonable future job prospects include President of the United States, you wound them far more than $300,000 worth.  

    Dim the lights at Random House, Sarah, or Chuck Jr.!

  2. ThePaganTemple
    September 27th, 2011 @ 12:06 pm

    I don’t know, at the very least I would think she could make Sullivan either reveal the sources of his speculation, or admit he’s making the whole shit up. She might be able to get some kind of cease and desist order on him. I can’t believe he’s legally allowed to get away with this stuff. But I’m not a lawyer.

    Griffen is the same really. She could make him reveal the source of his funding, if he has any. The fact that he doesn’t have any real assets worth going after is not the point. She would be going after him. Somebody clearly needs to.

  3. MathMom
    September 27th, 2011 @ 12:10 pm

    The cost of fulfilling FOIA requests of the Palin adminstration in Alaska is the reason Palin resigned as governor.  She didn’t want all of her state budget and time spent fulfilling the requests, so she removed herself as a target.  She also was being personally bankrupted, and needed to make a change so the abuse would stop.

    She learned a lesson from that, and is now doing the same thing to Random House – yes, payback is a bitch.  Palin is going to raise the morals of the entire publishing industry with this action, IMHO.

  4. Sarah Palin Suits Up | Wizbang
    September 27th, 2011 @ 8:13 am

    […] the unsubstantiated allegations. Robert Stacy McCain, former professional mainstream journalist, explains the legal niceties as only one who’s lived through such crap can. Further, in the letter, Palin’s lawyer says that Creepy Joe has forfeited his […]

  5. ThePaganTemple
    September 27th, 2011 @ 12:17 pm

    Wow, looks like the lefty bloggers are making the rounds, trying to do damage control. Hey Philip, question for you. If Palin runs, and wins, what will you do?

    1. Bullet through the roof of the mouth
    2. Bottle of pills and vodka
    3. Jump from a bridge
    4. Hang yourself

    I suggest one, its quickest and relatively painless.

  6. Lola J. Lee Beno
    September 27th, 2011 @ 12:36 pm

    What makes you think she’s not running? Inside information, perhaps? Let’s wait until she actually produces patterned sound waves forming specific words. 

  7. Sue Lynn
    September 27th, 2011 @ 1:42 pm

    Taste my Nightstick Joe!!!! KAAAABOOOMMMM!!!! 

  8. Bob Belvedere
    September 27th, 2011 @ 1:51 pm

    Bloody Huns.

  9. Tennwriter
    September 27th, 2011 @ 1:52 pm

    Welcome Mr. Beno, and what you said.

  10. Bob Belvedere
    September 27th, 2011 @ 1:57 pm

    ‘Creepy Joe The Cheap Whore’ — there, fixed that for you, Jeff.

  11. Tennwriter
    September 27th, 2011 @ 1:59 pm

    Absolutely.  I’m expecting some sort of ‘I’m not really sure we can go forward with this.” or “These arguements seem inconsistent and weak. I’m going to have to reccommend against going ahead.” or “Are we certain this McGinnis fellow is reliable?”

    It will be wonderful thing, like those East Anglia emails.

  12. Tennwriter
    September 27th, 2011 @ 2:03 pm

    Yeah, Rice might have just stared down at this idiot (hey Rice is a b-ball player, I’m assuming he’ stall), and said nothing.  And now Rice doesn’t want to get into the target zone.

  13. Tennwriter
    September 27th, 2011 @ 2:16 pm

    You’re a caring person, PT.  🙂

  14. Richard Mcenroe
    September 27th, 2011 @ 2:35 pm

    Don’t be unrealistic.  You’ll never get 12 wombats on the jury.

    This is a civil trial.  You only need 7.

  15. Juliann F. Cornwall
    September 27th, 2011 @ 2:38 pm

    What about the fact that her name is trademarked will that play into this at all I wonder?

  16. rosalie
    September 27th, 2011 @ 2:45 pm

    I like your analysis, Wombat, and I sure hope you’re right.

  17. Rob Houghton
    September 27th, 2011 @ 2:49 pm

    Her brother Chuck could be the one to file the actual lawsuit.  He’s not a public figure, at least he wasn’t before the book came out, and if he’s a public figure now, it wasn’t willfully on his part.

  18. Philip Munger
    September 27th, 2011 @ 2:52 pm

    Should Palin do as you suggest, I’ll keep on doing what I do.  The odds of Palin becoming president are less than you or me being hit by last week’s incoming space junk.

  19. Rob Houghton
    September 27th, 2011 @ 2:52 pm

    Maybe Trig should sue.  Put him up on the stand.

  20. Juliann F. Cornwall
    September 27th, 2011 @ 2:53 pm

    What about the fact that she has her name trademarked? Does that play into this at all? What other reason but situations like this where your name is used negatively in a publication would you do that?

    I also see that if nothing else by doing this after the Media’s (Even my right leaning local news. The only one I will watch any more) release of the Book and what was put out there, the damage is done all ready. This at least gets the word out there that it is just gossip into the minds of the public that don’t really research to find out the truth for themselves.

  21. Philip Munger
    September 27th, 2011 @ 2:53 pm

    Glad you’re not MY attorney, Robert.

  22. t-dahlgren
    September 27th, 2011 @ 2:57 pm

    Trademark means nothing in this instance.  Coca-cola is trademarked, you could write a book about the corporation, using their name ten thousand times and it wouldn’t make a difference.

    Slap it on one beverage container that you offer for sale and you are in deep kimchee.

  23. t-dahlgren
    September 27th, 2011 @ 3:00 pm

    Plus, you had your tinfoil headgear firmly in place!

  24. Upton
    September 27th, 2011 @ 3:09 pm

    Bring it on snowbilly!

  25. Dave Weigel
    September 27th, 2011 @ 3:22 pm

    The stories subject to debate here are rumors about the Palins that remain in the book as rumors. The stories of Trig Palin’s birth and what Bristol Palin did or didn’t do after her son was born appear as rumors, things that McGinniss heard but can’t confirm, as opposed to the facts McGinniss gets through sources. The Glen Rice story, the newsiest item in the book, is confirmed cold. The stories of Palin affairs are put in the mouth, first, of a named source who’s showing McGinniss around town — he elides the question of whether he believes them.

  26. ltw
    September 27th, 2011 @ 4:06 pm

    I think she will sue for $1 plus legal fees.  It’s not about the money.

  27. ltw
    September 27th, 2011 @ 4:21 pm

    I think, the Joe McGinniss email Breitbart published on his Big Journalism site will be viewed in light of the long acquaintance with the receiver of the e-mail.   From the e-mail Breitbart published… 

    “And even you write frequently that you know things you can’t yet post, but that soon “all will be revealed.” This has been going on since I first became aware of your blog, but as far as I know you haven’t substantiated a single claim or provided verification for a single rumor that you’ve posted about Sarah’s personal life, or the personal lives of any Palin family members. Thus, she gets to denounce what she calls “lies.”

    Neither from you, the Enquirer, AlaskaWTF, or anyone else, have I seen a credible, identified source backing any of the salacious stories about the Palin family.”
    October 3, 2009 is the date mentioned by Griffin when the introduction to Joe McGinniss was made.

  28. » Sarah Palin threatens to sue over “Rogue” Book
    September 27th, 2011 @ 12:27 pm

    […] Le·gal In·sur·rec· tion, Big Government, Wizbang, The Other McCain,, Hot Air, Mediaite, Alan Colmes’ Liberaland, News Hounds, […]

  29. Robert Simmons
    September 27th, 2011 @ 4:55 pm

    That is a really nasty reply to give to anyone. You should retract it. I loath the progressive agenda but I am not cheering for anything to happen to the people. I would much rather change their minds than see someone hurt. What you said in this reply is just sick.

  30. McGehee
    September 27th, 2011 @ 5:18 pm

    Lawyers don’t like dealing with witnesses who are smarter than they are.

  31. McGehee
    September 27th, 2011 @ 5:23 pm

    The Glen Rice story, the newsiest item in the book, is confirmed cold.

    Where? How?

  32. David R. Graham
    September 27th, 2011 @ 5:23 pm


  33. Anonymous
    September 27th, 2011 @ 6:04 pm

    So I was wrong. *shrug* I’m a moderator, not a lawyer, which is why nobody pays me for legal advice.

  34. Should Sarah Palin sue over Joe McGinniss’ scathing biography? | Books & Publishing News
    September 27th, 2011 @ 2:24 pm

    […] Palin should sue them: Random House has it coming, says Robert Stacy McCain at The Other McCain. “A journalist has to screw up pretty bad to lose a libel case,” and McGinniss did just […]

  35. ThePaganTemple
    September 27th, 2011 @ 6:29 pm

    Wouldn’t it be kind of hypocritical of me to retract something I mean wholeheartedly? No I’m not retracting it. I’m not a “Love your enemy” kind of guy.

  36. Should Sarah Palin sue over Joe McGinniss’ scathing biography? (The Week) | Breaking News Today
    September 27th, 2011 @ 2:49 pm

    […] Palin should sue them: Random House has it coming, says Robert Stacy McCain at The Other McCain. “A journalist has to screw up pretty bad to lose a libel case,” and McGinniss did just […]

  37. ThePaganTemple
    September 27th, 2011 @ 6:59 pm

    My guess is the primary motivation of Random House was the dollar signs that kept floating around in front of their eyes. They probably though this was going to be one of the biggest selling books they’d had in years.

  38. ThePaganTemple
    September 27th, 2011 @ 7:08 pm

    She should sue for millions of dollars in my opinion. But mainly, she should demand a retraction from them, and an apology.

  39. Anonymous
    September 27th, 2011 @ 7:12 pm
  40. ThePaganTemple
    September 27th, 2011 @ 7:14 pm

    What did he say, I missed that? Damn!

  41. Anonymous
    September 27th, 2011 @ 8:11 pm

    So the executives and vetters are greedy and their attorneys are incompetent.

  42. Anonymous
    September 27th, 2011 @ 8:27 pm

    And doing a damn fine job of moderating you are, haven’t read “it” in several days.

  43. Anonymous
    September 27th, 2011 @ 8:36 pm

    There needs to be an app for that.

  44. Robert Simmons
    September 27th, 2011 @ 9:51 pm

    Wishing for the death of political opponents is a dark path that has lead to the murder of millions in the history of humanity. Atrocities throughout history have been committed under such banners. You say that about your opponent and they say it about you and eventually someone starts shooting and catastrophe issues. This country was founded on rational debate and free exchange of ideas.  I wish for their ideas and philosophy to be defeated completely; the people themselves I wish to convince and If I cant convince them I wish to leave them without power.  I do not, however, wish for their harm.

    If you can set aside morality when it is inconvenient, then you have no morality at all.

  45. Danby
    September 27th, 2011 @ 10:03 pm

     Only if someone were trying to market something by calling it “Sarah Palin”, i.e. a Sarah Palin fashion doll, or porno.

  46. ThePaganTemple
    September 27th, 2011 @ 10:08 pm

    Fine, I have none. What do you want, for me to shake their hands and wish them well? Sorry Charlie, not happening. I took the time to check out your Facebook, and I see you’re from Britain, a country which has never had any kind of history of freedom from government control. Well, freedom from government control was exactly what this country was founded on, and I wish nothing but the worst on anybody that wants to turn this country into one like the one you left.

    And that holds especially true for the left in America, whom I actually put on a lower order than Islamic terrorists, who at least have the intellectually honesty to admit they want to destroy us.

    I expressed my hope that, if Sarah Palin won the presidency here, that leftists would commit suicide en masse, and I reiterate that here. But before you get on you high horse and get all touchy-feely with the lectures to ME about how I should sing Qumbaya to this human refuse, you might want to consider the fact that, if leftists do commit suicide en masse, it won’t be me that put the gun in their hands.

    The true culprit responsible for their deaths would be the very scum I was replying to, Phil Munger (by the way, check out his Wikipedia entry) as well as all the others who spend day in and day out preaching hatred and intolerance against conservatives, Republicans, Christians, anybody that oppose their world view. They are the ones responsible for the hate, not me. I just see them for what they are. And I’m not about to fucking apologize for how I feel about them. Not to you, them, or to anybody. Got it?

  47. Smokem987
    September 28th, 2011 @ 1:27 am

    Refusing to watch anything but “right leaning local news” makes you sound like the people you criticize for not really researching issues.

  48. Anonymous
    September 28th, 2011 @ 2:32 am

    I haven’t read the book – you apparently have – but it’s the “remain in the book as rumors” part that is looked over with a fine tooth comb by plaintiffs lawyers in a libel suit.  McGinniss cannot exculpate himself simply by liberally sprinkling “according the the rumor” and “people were saying.”  If at any point McGinniss states or implies that he has some kind of inside information or sources that lends support to a rumor (and he doesn’t), that will ground defamation liability.

  49. Laurence Sheldon
    September 28th, 2011 @ 5:07 am

    To think that when i was little, Bennett Cerf was an icon in our house.

    We have moved to a much smaller house and book-shelf-space is a premium.  I’ll bet I can solve the problem by sending all the Random House books ( all labels) to the landfill.