‘Discovery Is a Bitch,’ as They Say, and Doug Mataconis Is …

Posted on | September 27, 2011 | 42 Comments

. . . well, he’s badly mistaken, in my opinion, because if I called him an “obnoxious a–hole,” he might sic his lawyers on me. Truth is the ultimate defense in such cases, of course, but his apparent prejudice against Sarah Palin seems to be clouding his judgment.

Now, let’s count the weasel words: “in my opinion” Mataconis is sadly mistaken, and calling him an “obnoxious a–hole” is merely suggested as a hypothetical. I say he “might sic his lawyers on me,” but the “might” relieves me of having to prove that Mataconis is a litigious pest who files nuisance suits at the drop of a hat. (An assertion I have not made.) His “prejudice,” I describe as merely “apparent” — he certainly gives the appearance of being prejudiced against Palin — and it only “seems” that his judgment is clouded by this.

You see? Long years of practice at avoiding libel come in handy at a time like this, so that if Mataconis accuses me of calling him an “obnoxious a–hole,” it would be him who has defamed me.

OK, so I spent about two hours working on a long item at The American Spectator about Sarah Palin’s potential defamation case against Random House. And then Mataconis pops up on Twitter derogating my work, as if he were indeed an obnoxious a–hole.

It is not my habit to engage in arguments 140 characters at a time, when I might as well get a blog post of it. My American Spectator item was written in response to a column today by David Magee:

But here’s the problem with suing [Joe] McGinnis and the publisher: Palin would have to prove that the allegations in the book are all lies if she proceeded with a lawsuit.
She’s a public figure — considerably so — and it’s hard to prove libel when you are in the public eye in the first place. . . .
She would have to clear her name completely.

And here’s what I wrote at The American Spectator:

This is absurd. If the Palins do sue, their suit will specify defamatory statements in McGinniss’s book that they believe they can prove false. They do not have to prove every allegation false, nor would Sarah “have to clear her name completely.” Only evidence and testimony relevant to those disputed allegations will be admissible, and so there is no basis for Magee’s assertion that Palin would have to address every lurid claim in the McGinniss book.

What Magee (and Mataconis) are thinking about is the old legal axiom, “Discovery is a bitch.” Before you sue someone for defamation, you have to think about what evidence the defense might be able to demand you, as the plaintiff, produce in the discovery phase of the suit. But they can only demand evidence that might be relevant to the truth of a statement that you have claimed is false and defamatory.

So if Palin’s suit doesn’t dispute, for example, McGinniss’s cocaine-and-adultery tales, then Random House can’t go on a fishing expedition in that area. Assuming that her suit would be very specific about which statements she disputed — cherry-picking those most easily proven false — then the “discovery is a bitch” factor would be no deterrent to suing.

Certainly her lawyers would advise her very carefully in such a matter, and they might even advise her against suing. But if she does sue, she need not “clear her name completely” or prove herself a virtuous Saint Sarah in order to prevail. If she exposes McGinniss as having published multiple lies, she destroys his credibility even as to the truth of accusations that she does not specifically dispute. McGinniss’s e-mail to Jesse Griffin appears very damaging to Random House, and the letter Palin’s lawyer sent to Random House suggests a suspicion that there may be other e-mails equally damaging.

And as I have repeatedly said, McGinniss’s known association with Griffin is damaging. In my item at The American Spectator, I call Griffin a “lying pervert” — without fear of libel. It is an objective fact that Griffin lied about his “exclusive” that Palins were divorcing. (More than two years later, they’re still married.) So there’s your “lying” and as for the “pervert,” permit me to remind you:

“You know the reason that many people enjoy adult movies is that it is sexy to watch people making love. . . . I think that this trend toward real people having real sex is definitely the way to go. I always had a little guilt watching an adult movie and wondering if the female performer was a drug addict, or victim of molestation, just prostituting herself to make a buck. I am not Jewish, so guilt and sex don’t really go together for me. But when you see a video of an amateur couple having sex you can tell that they are simply doing it for the sheer excitement of sharing their passion with a bunch of middle aged pervs who are going to wank off to their sexual exploits. Well great here comes that guilt again.”
— “Gryphen,” a/k/a Jesse Griffin, June 3, 2007

“Yes I DO work in a Kindergarten class during the school year. My main job affords me some time during the day and I have chosen to use it teaching children to read, and helping them to become more independent.”
— “Gryphen,” a/k/a Jesse Griffin, Aug. 2, 2009

“Having somebody reveal your “secret identity” can be a little unsettling . . .”
— “Gryphen,” A/K/A, Jesse Griffin, Aug. 4, 2009

“All of the fun of sex is drained by making all of these rules and labels. If sex is not naughty then it is almost not worth doing. I love kids, but in my opinion they are just a side effect of a healthy sex life.”
— Gryphen,” a/k/a Jesse Griffin, June 14, 2007

“And your penis will respond more readily if you take it out and put it through its paces more often. Duh! So the next time your girlfriend/wife/mother bust you for watching porn on your computer, simply tell her that you are exercising and you would appreciate some privacy.”
— “Gryphen,” a/k/a Jesse Griffin, July 7, 2008

“That’s right I am promoting self pleasure. Does that really surprise anybody?”
— Gryphen,” a/k/a Jesse Griffin, Oct. 17, 2007

“I do it because it brings me joy to work with these children and I believe, and have been told, that I am very good at it . . .
“[Y]ou now know my dirty little secret. I am an assistant teacher in a room full of five year old children. . . .”
— Gryphen,” a/k/a Jesse Griffin, Aug. 2, 2009

“I am teaching my boys to wear dresses and swish when they walk because being ignorant or drug addicted is no longer a guarantee of being passed over. If your not willing to suck cock then pack up your going to Iraq.”
— “Gryphen,” a/k/a Jesse Griffin, June 10, 2005

It seems Griffin has attempted to scrub his archives, but Dan Riehl still has all the cache files of the “Gryphen” blog he downloaded back when Jesse was forced out of his kindergarten job. The fact that McGinniss turned to Griffin for help in vetting his “tawdry gossip” is just about all you need to know about what kind of journalism McGinniss was doing.

If I were a Random House executive, I’d be very worried right now.

And if I were an oxnoxious a–hole . . . well, let’s don’t talk about Doug Mataconis. He might sic his lawyers on us.

Category: Sarah Palin

Comments

42 Responses to “‘Discovery Is a Bitch,’ as They Say, and Doug Mataconis Is …”

RandyW
September 28th, 2011 @ 1:46 am

“because if I called him an “obnoxious a–hole,” he might sic his lawyers on me.”

You certainly wouldn’t want to be sued for definition of character.
Anonymous
September 28th, 2011 @ 2:08 am

I see what you did there.
Anonymous
September 28th, 2011 @ 2:14 am

Why would discovery be a bitch for Palin? Is one supposed to believe that she would have actual evidence (other than a journal I suppose) that she’d had sex with some one or done cocaine twenty years ago? Surely if someone else had a pic of her doing a line twenty years ago it would have come out by now, if she had such a pic surely it would be long gone by now.
Anonymous
September 28th, 2011 @ 2:14 am

You’re a little limited in your definition of what’s relevant in discovery. The damage sought to be remedied [by a money judgment] in a libel action is damage to reputation. So, in addition to exploring those statements of fact at issue in the case, discovery can delve into the “character” or “reputation” of a libel plaintiff – both before and after the alleged libel, as well as who thought what about the plaintiff, and why, and when. Discovery truly is a bitch in a libel action. Defense counsel will put the libel plaintiff on trial. And it won’t be fun, except for the lawyers. Of course, plaintiff’s counsel will have a field day during discovery, too. Who has the deepest pockets for paying scads of lawyers to undertake unending discovery?
Anonymous
September 28th, 2011 @ 2:22 am

Mataconis has it bad for Palin…

J.
Joe
September 28th, 2011 @ 2:30 am

You guys are funny.
Joe
September 28th, 2011 @ 2:32 am

Litigation is not fun. Not many people say after a lawsuit, even one they won, “wow, that was fun, I wish we could do it again…” It may be worth doing, but it is generally hard work.

My guess if the Palins do sue, Sarah is not running in 2012. But that is only a guess.
Anonymous
September 28th, 2011 @ 2:51 am

My wife had gone to a doctor when we were still in Va., he had ordered a bunch of unnecessary tests which we refused to pay for. I believe it was my wife who filed in small claims but at any rate he was represented by counsel but was too busy to come to court himself. He sent his nurse/office manager in his stead. While she was on the stand their attorney asked a question about a disease or something and my wife rose and objected on the grounds that the nurse wasn’t an MD and could not testify as such. Long story a little shorter my wife won her case as most of the doctor’s side of the story couldn’t wasn’t admissible because his nurse wasn’t a doc. That she had bested an (overconfidant?) attorney particularly delighted her and my wife remained insufferably pleased with her self for many years after.
So yeah sometimes after a lawsuit people do say man that was fun.
Anonymous
September 28th, 2011 @ 2:56 am

I don’t like it when accusations of racism or misogyny are tossed around lightly. However, it does seem that some otherwise reasonable people lose their objectivity when it comes to discussing strong conservative women. Mataconis is completely around the bend in his hatred for Palin. Other conservatives on twitter (@keder for one) are much more critical of female politicians than they are of male ones. It is ridiculous. ALL politicians make mistakes. The current resident of 1600 Pennsylvania Ave and his VP have made more verbal errors than Palin could ever think of making.
Anonymous
September 28th, 2011 @ 3:14 am

Mr. Cronanty, if I were ever sued for libel (perhaps by an obnoxious a—hole), I’d be happy to have you as my lawyer. But I still fail to see how, if the Palins can disprove any defamatory statement published by McGinniss, they would be exposed to discovery inquiries utterly unrelated to the content of those statements.
Look again at what Andrew Breitbart pointed out: McGinniss published five of the six bits of “tawdry gossip” that he told Griffin were unsubstantiated. One of those is the Hanson affair rumor, which Brad Hanson, Sarah Palin and Todd Palin have all denied. McGinniss’s attributions are rather artful, but two of the sources he names (Stein and Cottle) as having repeated such gossip are both known political adversaries of Palin.
Exactly why should the Palins be expected to let all this pass? Assuming any of these tales – or anything else in McGinniss’s book – are known by the Palins to be false, what exactly do they risk in the discovery process? Like Mataconis, you seem to be assuming that the Palins have something to hide, and the only basis for that assumption is the fact that for the past three years, people have been saying terrible things about the Palins. That she has never previously sued anyone over these smears does not mean the smears were true.
Something else: McGinniss says he has dozens of hours of audio recordings of his sources and yet, in his book, the accusations are not supported by long verbatim quotations.
It appears to me that Random House made a bet that the Palins would not dare sue – they may have expected her to have already announced a presidential campaign – and so were willing to give McGinniss extraordinary leeway. And given the derisive and dismissive reviews that the book has gotten, the Palins seemed content mainly to ignore the book. But the McGinniss-Griffin e-mail changed the situation. We shall see what the Palins do and what, if anything, is the result. But I think it is unwise to assume the Palins would not sue for fear of the discovery process.
Michael Wiley
September 28th, 2011 @ 3:21 am

sleazy joe sued for $350,000 before

http://articles.latimes.com/1987-11-24/news/mn-24281_1_fatal-vision
serfer62
September 28th, 2011 @ 3:21 am

Stacy, this may be the reason for not announcing. If so, then she is now free to announce and become a Public Figure.
Anonymous
September 28th, 2011 @ 3:27 am

In a comment on a previous post about this there was mentioned the last part of the letter by Palin’s attorney which I see as a very key point.

““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.” ”

That is huge IMHO.
Charles
September 28th, 2011 @ 3:29 am

We would have to see the quotes from McGinness book itself on the specific libels charged to see if he failed to use enough weasel words to keep himself out of trouble. As RSM ably demonstrates, it is possible to smear someone with potentially libelous charges without actually libeling them.

I am not going to read the book to find out, but I suggest a good weasel would be able to weasel out of this. And Random House, if their lawyers didn’t do their diligence, always have the legal malpractice claim to recover their losses.
Anonymous
September 28th, 2011 @ 3:59 am

Even if any of the smears are true it’s inconceivable that the Palin’s have records of some sort to be “discovered” barring a journal or diary that is utterly unknown to anybody. I’m assuming that if there were a known diary some loon would have stolen it and published it by now.
ThePaganTemple
September 28th, 2011 @ 4:02 am

She has a right to be proud of that. That’s one hell of a story.
Edward Royce
September 28th, 2011 @ 4:50 am

Then there is the other half of the discovery process and the court trial itself; I’m not sure anonymous sources can remain anonymous in a libel suit. If the defendants can’t or will not produce the actual sources themselves for discovery and trial then it may end up with Palin winning on those issues almost by default.

And if the anonymous sources get outed those folks are going to be like bugs suddenly brought into the sunlight from an overturned rock…
Adjoran
September 28th, 2011 @ 5:24 am

If it were always a question of money the deepest pockets would always win, wouldn’t they?

Most libel plaintiffs do not have the advantage of having been recently vetted by national political parties and the FBI. Discovery isn’t as narrowly limited as Stacy supposes, but it isn’t possible after her last three years to surprise or inconvenience Palin much with investigations or questions. OTOH, discovery of internal Random House communications are not at all unlikely to disclose a culture of indifference to truth where Palin is concerned. Of the two sides, Random House has far more to lose by being embarrassed in discovery than the Palins do.

Businesses generally decide these things on a business basis. Like Stacy, I have a newspaper background, but in the business end. The publisher will do what costs the least in money and bad publicity (including the possible invitation to marginal cases to sue after a successful case), and withdraw the book and blame McGinniss and the editor. Maybe someone in Legal loses their job, too, for not stopping it.
Adjoran
September 28th, 2011 @ 5:29 am

Weasel words do get you past a lot of stuff, but a pattern of including completely unsubstantiated gossip in a book being presented as nonfiction would tend to supersede their protective power.

They couldn’t recover for legal malpractice because all the vetting of books pre-publication is done by in-house legal departments. The lawyers who actually passed on the book were individually hired by Random House, who also hired and promoted their supervisors and department head. Are they going to sue themselves?
Anonymous
September 28th, 2011 @ 6:01 am

Palin could sue for a buck. Discovery and testimony concerning character and reputation are only required if Palin asks for ‘special damages.”
Thomas Knapp
September 28th, 2011 @ 7:19 am

While it’s true that discovery will only apply to the actual claims that are being charged as defamatory, that still leaves lots of room for Random House and McGinniss to roll Palin in more tar than she can ever scrub off.

And here’s where I think you missed the boat big-time:

“If she exposes McGinniss as having published multiple lies, she destroys his credibility even as to the truth of accusations that she does not specifically dispute.”

You’ve got it bass-ackwards. Any claim that she doesn’t dispute will be treated as confirmed, and spread even more aggressively, by her detractors. “She disputed X, but not Y and Z, right? If Y and Z weren’t true, why were they left out of the suit?”

Tom Cruise has sued (successfully) at least three times over claims relating to whether or not he’s a homosexual. And everyone who’s ever been the least bit inclined to think he’s a homosexual still thinks he’s a homosexual.

Even if Palin slam-dunks McGinniss in court, 20 years from now those who are inclined to believe that Palin slept with Rice and with her husband’s business partner, snorted cocaine off an overturned oil drum, etc., will still believe those things. The only difference a lawsuit will make is that more people who might be inclined to believe those things will hear those things.
Anonymous
September 28th, 2011 @ 11:06 am

Sorry to be so late in responding. First, I’m not saying that the Palins [and I love Sarah Palin, God bless her] should be expected to let this pass. I am, however, pointing out that the libel lawsuit process is, indeed, a bitch. Not sure how to fix it – the British libel laws are worse, in the other way.
Second, let’s say McGinniss prints two items of “tawdry gossip,” both, at least arguably, defamatory [that is, damaging to the Governor’s reputation]. The first, dealing with, say, Ms. Palin’s use of cocaine, the Palins challenge – the second, say, Ms. Palin’s tryst with a former basketball player, they do not. Now, the fun begins.
Besides the truth of the statement, damage to reputation is also relevant. Q. “So, if cocaine usage is damaging to your reputation, wouldn’t having sex with a basketball player outside of marriage also be damaging to your reputation?” “Why or why not.” What’s the difference between using cocaine and having sex outside of marriage as it relates to your reputation?” “Why or why not?” “Would you agree that having sex outside of marriage could be damaging to your reputation?” “You haven’t challenged the truthfulness of the statement concerning having sex with Mr. X, correct?” “And, that’s because it’s true, correct?”
And on, and on, and on we go. Into the ins and outs of a maggot’s ass as to the statement about having sex outside of marriage and its relation to Ms. Palin’s reputation and how or what people think of her. I once took a libel plaintiff’s deposition for a week – and he was a convicted felon – what damage could be done to his reputation after all of things he had done [tried a motion for summary judgment based on him being libel proof, but lost]? Please believe me, you could go on and on about the sex statement. Who knew about it? What did they think about Ms. Palin’s reputation before and after hearing about it? Isn’t that statement more damaging than cocaine usage? Really, it’s much more wide-open than you think, because of the relationship between the unchallenged statements to reputational damage.
By the way, whether Ms. Palin now decides to run, or not, is irrelevant. She’s already a public figure and, for purposes of statements made about her when she was a governor, she’s a public official, which is a moot point now that I think about it, since the standard of proof [actual malice] is the same.
Anonymous
September 28th, 2011 @ 11:12 am

You’re right, the business will do what’s in its best interest, but defending a big libel lawsuit and winning may be worth it. I never had a media client give in solely because of money. Usually, there was something untrue in the statement, and some good possibility of losing.
If other, equally damaging statements, were not challenged [what I take as the gist of this post], I don’t see Random House folding real quick.
Anonymous
September 28th, 2011 @ 11:22 am

I don’t know what state you’re in, so maybe your statement is true. But that’s not the case where I live, and in most other states. Libel is defined as a false statement of fact made about a person that is made with the requisite degree of fault [in this case, actual malice defined as making the statement with knowledge of its falsity or with reckless disregard as to its truth] which damages the persons reputation [I won’t go into libel per quod and libel per se, as those principles are more and more being rendered meaningless, and I think that’s true across the nation – and I really doubt that any state has libel per se being applicable to public officials/figures, but I could be wrong]. Thus, whether you sue for $1 or $10m, you still have to prove damage to reputation, as it is an element of the tort. And if there is an unchallenged, yet defamatory statement out there, discovery will take place about it.
ThePaganTemple
September 28th, 2011 @ 12:13 pm

Doesn’t matter. In the end, her supporters and admirers will still support and admire her, possibly even more than they do that, and on top of that, it might gain her even more supporters and admirers, maybe a lot more.

More important than that though, is it would put not just Random House, but all other publishers-and two-bit writers as well-on notice that they’d better be damn sure of their facts and the legitimacy of their charges before they start trying to tear down public figures, especially one who is a conservative icon and as widely respected as Sarah Palin.

And, if it destroys Random House in the process, while that shouldn’t necessarily be the goal, that would be great too.
Bob Belvedere
September 28th, 2011 @ 12:26 pm

It just proves my theory, Adobe, that you married up.
Anonymous
September 28th, 2011 @ 12:26 pm

Of course, you guys are assuming Sarah Palin is the one suing. She may be content to let the other members of her family, like her brother Chuck Heath Jr, who is not and never has been a public figure, do the suing.
Anonymous
September 28th, 2011 @ 12:39 pm

Well she’ll focus on the main points in the email, but practically every point of the manuscript is open to challenge,
McGehee
September 28th, 2011 @ 1:22 pm

Indeed, I wonder how the vulnerability of the other claims in the book relates to those being challenged. Were I pressing a libel suit I would anticipate the reputation line of attack Mr. Cronanty outlines by being prepared to broaden my counter-attack in ways that put Random House in far deeper trouble than the initial complaint.
Thomas Knapp
September 28th, 2011 @ 1:45 pm

You’re right: Palin’s admirers will continue to admire her, and Palin haters will keep on hating Palin (over time, both groups will suffer attrition from e.g. boredom). There’s not a whole lot of crossover likely between the two groups. The only thing that grows either group is hullabaloo.

But: Random House doesn’t give a damn one way or another about “tearing down” Sarah Palin.
Random House just wants to make more money selling more books.

It’s exceedingly unlikely that any lawsuit-based scenario won’t result in Random House making more money from selling more books.
ThePaganTemple
September 28th, 2011 @ 2:43 pm

That’s a good point, but no publishing house would want to gain a reputation as a publisher of unsubstantiated gossip and smears passed off as journalism. When even Keith Olbermann and Rachel Maddow refuse to endorse a book that slams a person they obviously despise as much as anyone, that’s a pretty good sign the book is crap. Random House might do itself greater long-term damage, by continuing to promote it and endorse it, than could arguably be offset by any short-term financial profit it might make them.
Thomas Knapp
September 28th, 2011 @ 4:13 pm

TPT,

I doubt that Random House will continue to promote the book — they’re letting Palin’s supporters and detractors do that for them, which is cheaper and more effective. And they might very well even retrench, retract, etc. to further insulate themselves.

But if the Palins sue, money will be made in all directions, not just from promotion or sales of that book. There will probably eventually be at least one best-selling book about the lawsuit.

And as far as gaining “a reputation as a publisher of unsubstantiated gossip and smears passed off as journalism” is concerned, ask yourself who makes more money: National Enquirer or National Review?
ThePaganTemple
September 28th, 2011 @ 4:26 pm

And there’s also that. I would like to think RH wouldn’t want to go too far down that road, but who knows.
Anonymous
September 28th, 2011 @ 4:50 pm

I’m still not buying that there is any evidence of the allegations to be discovered. People, absent a diary, don’t normally keep records of “one night stands” or brief “cocaine encounters” the most likely evidence would be a random picture. Any evidence of “dirt” on Palin is almost certainly out already.
Anonymous
September 28th, 2011 @ 5:07 pm

So what you’re saying is that they have a defacto license to defame
someone who doesn’t agree with their politics, do I have that right?
Thomas Knapp
September 28th, 2011 @ 8:58 pm

narciso,

You write:

“So what you’re saying is that they have a defacto license to defame someone who doesn’t agree with their politics, do I have that right?”

Yup. Not just them, but pretty much everybody, and it’s been that way for a long time.

Of course, I doubt that it has anything to do with politics from Random House’s perspective. They’ve also published Ann Coulter (through their Three Rivers Press imprint) and Ayn Rand, and that’s just an off-the-top-of-my-head check of female right-wing authors whose first names start with “A.”

Repeat with me three times: They publish to make money. They publish to make money. They publish to make money.
Anonymous
September 28th, 2011 @ 9:50 pm

I was assuming that this post concerned actionable statements of and concerning Sarah Palin. Chuck Heath Jr., cannot bring a cause of action based on statements made about Sarah. If there are libelous statements in the book about Mr. Heath, then yes, he can bring his own lawsuit.
Anonymous
September 28th, 2011 @ 10:49 pm

You do understand the difference, between this and other projects, Coulter’s books are laboriously footnoted, heck even Kitty Kelley
does a more professsional job, even for a hit piece, which this resembles
Anonymous
September 28th, 2011 @ 11:50 pm

I’m a New Yorker, and here we have categories of “presumed damages” in libel. From a NY case, explaining these categories:

http://caselaw.findlaw.com/us-2nd-circuit/1557519.html#footnote_6

“New York law has long recognized that “[w]hen statements fall within” established categories of per se defamation,6
“the law presumes that damages will result, and they need not be
alleged or proven.” Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992).”

“There are ‘four established exceptions [to the requirement that
plaintiff allege special damages] consist[ing] of statements (i)
charging plaintiff with a serious crime; (ii) that tend to injure
another in his or her trade, business or profession; (iii) that
plaintiff has a loathsome disease; or (iv) imputing unchastity to a
woman.’ Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992) (citations omitted).”

That’s New York, but I remember from Torts II and BarBri that these are common-law categories followed by some other States too; Alaska, I don’t know. I also don’t know if the statements Palin would allege to be defamatory can be shoe-horned into any of these categories (I doubt she would sue of the Glen Rice claim.) But “(ii) that tend to injure
another in his or her trade, business or profession” looks the most promising (again, assuming there’s an analog in AK law.)

(Palin is also not necessarily limited to suing in AK, and choice-of-law principles may allow her to utilize non-AK law.)
Gustav5
September 29th, 2011 @ 12:38 am

Meta World Peace had a one night stand with Katie Couric.
Gustav5
September 29th, 2011 @ 12:39 am

Wow the leftys accusing us of not listening to the free market?

Lol Irony.
Anonymous
September 29th, 2011 @ 1:45 am

I, too, have seen cases that seem to reference the ability of a libel plaintiff to have “presumed damages”, that is, to collect damages without the need to prove that the statements actually damaged his/her reputation. I have seen “presumed damages” be the principle applied in a “private person” lawsuit.
More to the point, I’ve not seen “presumed damages” in a case where actual malice is the standard of fault. I’m not saying it’s never been done, I’m just saying I’ve never seen it, and I’ve read a lot of libel cases. If you have a cite to such a case, I’d love to see it. And I’m not trying to challenge you or be a smart ass – I would truly like to read such a case and see what happens if it is appealed and see how it is treated in later cases.
But, more to the point I was making before, the plaintiff must prove that the statements are “defamatory.” In very general terms, to be defamatory, the statement must tend to harm the reputation of the plaintiff so as to lower him in the estimation of the community or to deter third persons from associating with him. That is an element of the tort. One cannot sue for libel based on a false statement of fact that is laudatory about the plaintiff. Thus, if a miserable old crank sues because someone writes in the local paper that he’s a wonderful person, his lawsuit will be thrown out, whether damages are presumed or not.
Thus, Ms. Palin is going to have to explain how the statement she has challenged is harmful to her reputation – expecially if the state employs the innocent construction rule, and most states do apply some variant of that rule. She will then have to explain how another statement, a defamatory but unchallenged and therefore a presumedly true statement, does not harm her reputation, or harms her reputation to a lesser extent than the defamatory statement she has challenged. You’re going to get dragged into discovery about the unchallenged statement, whether you like it or not.