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

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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 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.

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149 comments

  1. I think you nailed it Stacy.  It is a serious thing.  I doubt Palins will sue for libel, but what they have done is force Random House to either say this is true (which may bring on a suit) or apologize for errors. 

  2. The idea was to get the stories out there, true or not.  Honesty doesn’t matter, integrity doesn’t matter, the stockholders don’t matter, the reputation of a once-fine old imprint doesn’t matter.  This is the uncluttered fanaticism of a garden of Manhattan hothouse flowers…

  4. Thanks for the clarification.  I didn’t realize it wasn’t a “threat” until I read your post.  The rest of the blogosphere is calling it a “threat.”

  5. IIRC this is also a notice to Random House not to start shredding and purging the emails, notes and anything concerning McGinniss and his work of lurid fiction.

    The Left drooled over getting their hands on 25,000 of Palin’s emails … I’ll bring the popcorn when the McGinniss email record is revealed.

  7. I certainly don’t blame the Palins for being angry…anyone would. However, I doubt a lawsuit is the wisest move at this time. Does Sarah Palin REALLY want Glen Rice placed under oath (as RH lawyers would certainly do) and asked about any previous meetings he may have had with Ms. Palin?

  8. If Random House refuses to retract and Sarah does end up going forward with this suit, it won’t be McGinniss’s first defamation suit. Jeffrey MacDonald sued McGinniss over his book Fatal Vision as well and won a $300,000 defamation judgment. 

    Janet Malcolm wrote a book all about the MacDonald’s suit against McGinniss called The Journalist and the Murderer. If you want to know how truly fucked up McGinniss is, then read that book.

  11. Why would you believe that McGinniss story was true, when so much else in the book is clearly false? As I mentioned just the other day, you will notice that Glenn Rice has made NO PUBLIC STATEMENT about the McGinniss book since its publication. Why do you think that is?

  13. My guess is that Random House will pull the book within a month, possibly sooner.  The losses they’ll take on the book are nothing compared to what a lawsuit could cost them. McGinnis’s letter is too damning to be ignored.

  18.  I doubt Palins will sue for libel

    Oh, I think you’re very wrong, Joe. They know very well that they’d look bad if they sent a letter like this and didn’t bring suit. Absent a retraction and an apology from Random House — which would involve recalling and destroying the unsold copies of the McGinniss book — they can consider themselves sued.

    BTW, defending a book like McGinniss’s is going to be a helluva lot more expensive for Random House than the Palins’ expenses as plaintiffs. The McGinniss e-mail to Griffin is tantamount to a confession of defamation.

  21. The problem is that lawsuit likely won McGinniss more in royalties than the insurance company for his publisher paid out. 

  23. Why would that make you feel better? Was she married? Did she have kids? Did the author say that Glen Rice was on the Miami Heat at that time? Miami Heat Franchise started 1988.

  25. Here’s the letter:
    http://abcnews.go.com/Politics/page/sarah-palin-sue-author-publisher-rogue-14611032

    And you didn’t mention the beauty part:
    “Further, as Mr. McGinniss waived the attorney client privilege and
    disclosed to third parties what “Random House Lawyers” told him (he
    needed sources and the book was not publishable without them), we will
    also be entitled to review your company’s legal correspondence with Mr.
    McGinniss and his responses thereto.”

  26. I think it suddenly got very serious for Crown Publishing and McGinniss. It will matter a great deal to them now. 😉

  27. I don’t think that Palin sues for libel, either, because of the rather unrealistic standards set by NY Times v. Sullivan, but she does put Random House on notice that the book is to be considered defamatory and fraudulent.

  28. I don’t think she cares too much about the Rice story. Even if true, so what? She was a young single woman at the time.

  29. Oh, were she to actually to sue, the upside would be that she could go into a campaign and not have to talk about the matters under review. The downside is that in a civil action, all sides are subject to discovery. I don’t know if Palin wants that. I think she has clean hands, but Palin doesn’t want to take the stand during an election year. 

  31. Good.  As I told the drunken bum at the 7-11 babbling about Joe McGinniss’ lies today (true story!) – “anybody with the balls to level these charges had better have the proof.”  See you in court, McGinniss.

    d(^_^)bhttp://libertyatstake.blogspot.com/”Because the Only Good Progressive is a Failed Progressive”

  32. Looks and sounds like Discovery to me.

    Also looks and sounds as though McGinniss and Crown are going to have their a**es handed to them. Wouldn’t be surprised if Sarah turns down any settlement. Just to get McGinniss on the stand and under oath.

    This is going to end badly for the psychotic, stalking scribbler and Crown. Not for Sarah.

  33. It is an all or nothing with actually filing a lawsuit, the Palins have to win. 

    But here is the bigger issue, who runs for president while in civil litigation?  At least in Andrew Jackson’s day, Todd would call a douchnozzel like McGinniss to a duel and it McGinniss would be enjoying a long dirt nap. 

    Random House will not care about the cost of litigation.  It has insurance which presumably will defend it at no cost to Random House (at least for the defense side of it).  Sales of a shitty book will go up if there is any filing.  But if there is litigation does that mean Sarah is not getting into this race? 

  36. As you said, I don’t think Palin has anything to hide either, but this is a strong message to Random House that they better have thier ducks in a row. They were probably counting on Palin running for president and not wanting to bother with a lawsuit at the same time. After the revelation with creepy Joe’s email, all bets are off.

  38. Actually, Joe, depending on the terms of the policy they may not either defend it or pay on it. An insurance policy assumes that you were reasonably diligent in avoiding foreseeable risks; getting the hell sued out of you after publishing unsourced defamatory lies  is pretty damn foreseeable, and I don’t think anyone who isn’t an idjit or a leftard can say with a straight face that Random House did any kind of due diligence.

  39. Bertelsmann and their foundation are left wing and their foundation came to Washington after Obama was election. The politics of Bertelsmann need to be on trial as well. 

  44. Things to think about.  Criminal activity is rarely insurable.  Thus RH will be in litigation with their insurer, as well as Palin.  If its is all BS the palin’s will get 10 or 100’s of millions.  The more aggressive palin is the better her prospects for ’16 in either slot.  And if she wins the MSM will be more careful going forward.    My take is she’s out for ’12 but will have 4 years of practice and a sword of Damocles over the MSM for ’16 

  45. oooo wouldn’t be fun if the Insurance Company pays on it and then drops Random. Ha Ha just dreaming, Random House probably self insures at least for the 1st couple million.

  46. Doubtful. A lot of states (and I think the feds, now) have laws preventing criminals from profiting from their crimes.

  47. This is open and shut. Random House knew they were lies, knew they were defamatory, and published them with obvious malice aforethought. They’re screwed.

  49. “If the lawyer says retract, you retract.” That’s if you want to keep your day job as a reporter. An author like McGinness doesn’t have a day job to keep. As for the tawdry gossip email, McGinness wrote himself a little loophole:

    “Thus–as Random House lawyers are already pointing out to me–nothing I can cite other than my own reporting rises above the level of tawdry gossip.”

    His weasly defense will be that he relied on his own reporting, not the tawdry gossip other people were peddling.

  50. Right. The government will probably confiscate those funds. Especially in this economy. The states are scraping for every dollar they can snatch. 

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