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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Sarah Palin and Ado Annie

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Yesterday, Turner Classic Movies showed the 1955 Rogers & Hammerstein musical Oklahoma, which is why Ado Annie came to mind when I read this item at ABC News:

It’s an exciting week in politics because this is the week Sarah Palin will tell the world her 2012 intentions. Or not.
At least that’s what she indicated to ABC News’ Jake Tapper at the Iowa State Fair last month, telling him September was “practically speaking … kind of a drop-dead timeline” when it comes to “jumping in the ring.”
With only five days left in the month, that means this week is the “drop-dead timeline,” right?
Not exactly. Since her early August trip to Iowa, she’s backed off on her self-imposed date, but as the days, debates and campaign events creep by and the state filing deadlines loom, the window may be closing.

If Palin intends to run, her long delay can perhaps be explained as strategy. But if she doesn’t intend to run, why not just say “no”?

“Ain’t what you might say, ‘promised.’ I just told him ‘maybe.’ “

So we wait to see whether “maybe” means “yes” — or the word that Ado Annie could never bring herself to say.

Maybe I ought to be more careful with my analogies. Joe McGinniss reads this blog, y’know.

More Sex, Less Babies?

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Reader Matt K. calls to my attention the compare-and-discuss juxtaposition of two items at Instapundit. Item One:

NOT SURE THIS APPLIES IF YOU’RE MARRIED: How the ‘price’ of sex has dropped to record lows.“Women are jumping into the sack faster and with fewer expectations about long-term commitments than ever, effectively discounting the ‘price’ of sex to a record low, according to social psychologists.”

Item Two:

PHILLIP LONGMAN: Actually, The Children Aren’t The Future: The World Will Be More Crowded — With Old People.“The U.N. now projects that over the next 40 years, more than half (58 percent) of the world’s population growth will come from increases in the number of people over 60, while only 6 percent will come from people under 30. Indeed, the U.N. projects that by 2025, the population of children under 5, already in steep decline in most developed countries, will be falling globally — and that’s even after assuming a substantial rebound in birth rates in the developing world. A gray tsunami will be sweeping the planet.”

(Emphasis added.) What I see here, as a pro-life father of six children, is how the economics of sex and reproduction have been distorted by the Contraceptive Culture.

Perhaps you see something else in this Rorshach inkblot test.

ADDENDUM: To explain what I mean by “the economics of sex and reproduction,” this phrase doesn’t refer strictly to monetary values, but rather expresses an understanding of the processes of sexual behavior from a market perspective.

The old saying that a man will not “buy a cow if he’s getting the milk for free” — i.e., that promiscuous women undermine their marital prospects — expresses this supply-and-demand concept of sex. But the truth of this adage an individual basis can also be extrapolated to the larger society: When women are generally promiscuous, men will be generally reluctant to marry.

This explains why, in every culture, sluts are stigmatized. The rational basis of what feminists derogate as misogynistic “slut-shaming” is seldom articulated, but it is this: Promiscuous women make it more difficult for all women — including chaste women — to get and keep a husband.

As female promiscuity flourishes, the incentives for men to enter into and remain in monogamous relationships are diminished. Furthermore, the men for whom monogamy is most discouraged by widespread female promiscuity are the men most desireable as husbands. Affluent, confident, attractive men — Alpha males — are those whom women commonly dream of marrying, but in a society that tolerates (or even encourages) female promiscuity, such men are also magnets for tramps, floozies and bimbos.

Because these Alpha males never lack opportunities for low-investment sex in a promiscuous society, more chaste women find themselves under pressure to “put out” if they wish to attract the interest of a successful man. And even if a woman can manage to land a real “catch” of a husband in such a society, his fidelity is always jeopardized by the floozies, who don’t give a damn whether their one-night-stand is married or not.

This unfortunate situation is an inexorable consequence of the Contraceptive Culture, which hurts women far more than it hurts men, although ironically it is feminists who most zealously defend the Contraceptive Culture.

Contraception transforms the nature of the sexual act and, as contraception becomes a routine matter, the ways in which we think about sex — that is to say, our cultural expectations — are likewise transformed. Because cultural expectations are seldom examined in any genuinely objective way, most people never question the assumptions of their own cultures. And when you try to explain to such people that life can be lived in other ways, they often become angry and irrational, as if you had insulted them. And speaking of feminists . . .

Feminists are not the only “progressives” who lack the curiosity to question whether any particular element of their political agenda is genuinely “progress.” But offending feminists is just so much fun that I can seldom resist the temptation of pointing out their errors.

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Politics as Show Biz

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“Hours before last week’s presidential debate in Orlando, [Fox News] anchors sat in a cavernous back room, hunched over laptops, and plotted how to trap the candidates. Chris Wallace said he would aim squarely at Rick Perry’s weakness: ‘How do you feel about being criticized by some of your rivals as being too soft on illegal immigration? Then I go to Rick Santorum: is Perry too soft?’
“ ‘That’s going to get some fireworks going,’ said managing editor Bill Sammon, grinning.”
— Howard Kurtz, “Roger’s Reality Show,” The Daily Beast

About 15 years ago, I read two excellent books by Neil Postman, Amusing Ourselves to Death, and The Disappearance of Childhood. Postman was a liberal, but his analysis of the ways in which television shape our culture — including politics and education — was praised by many conservatives. When Postman died in 2003, it was an honor for me to be asked to write an obituary feature for the British Guardian:

Postman was a disciple of Marshall McLuhan, who famously declared that “the medium is the message”. He was appalled not so much by the specific content of television as by the very essence of the medium, which he saw as an enemy of literacy and serious thinking. Television, he wrote, “serves us most usefully when presenting junk entertainment; it serves us most ill when it coopts serious modes of discourse — news, politics, science, education, commerce, religion. We would all be better off if television got worse, not better.”

You can read the whole thing. My point in citing Postman today is that if you don’t learn to view television critically — if you don’t attempt to see the ways in which the medium dominates the message — then you will be manipulated without your consent or knowledge.

Postman repeatedly emphasized that we intellectually process the written word in a different way than we process the spoken word or especially the visual imagery of television, which is always a matter of show biz spectacle, for good or ill. People who obtain most of their political information through television will have entirely different beliefs and attitudes than do people who get their information from newspapers, magazines or books — or blogs, for that matter. (Postman also did some prescient debunking of fashionable nonsense about the wonders of the computerized “information revolution,” and if you want to think more deeply about that, I would also recommend The Gutenberg Elegies by Sven Birkerts.)

Unless you actively seek out knowledge beyond the frame of the mainstream narrative, you are surrendering control to the producers of media — of whom, in some minor sense, I am one. What I have tried to do from time to time, as someone who has spent 25 years in the news business, is to de-mystify the media by explaining what goes on behind the scenes. Hell, I used to edit Bill Sammon’s articles at The Washington Times, which gives me rather an unusual perspective on Sammon’s work as executive editor at Fox News.

Sammon and the other people at Fox obviously understand the show-biz aspect of TV news and they are very good at it. Even when they are “fair and balanced,” the inherent bias of television toward visual spectacle — which is why Sammon grinned at the prospect that Mike Wallace’s question would “get some fireworks going” — shapes the nature of the information you receive.

Think about that. Hit my tip jar. And read more books.

UPDATE: While we’re on the topic of media analysis, here is a phenomenon that puzzles me. Three years ago, I sort of reverse-engineered the Memeorandum algorithm, which was the basis of Rule 3, a bit of knowledge I hope has helped other bloggers. It was via Memeorandum that I found this Kurtz item, but it’s also listed at the affiliated MediaGazer site:

Here’s what puzzles me: My posts are routinely linked at Memeorandum, but when I do media criticism, I’m never linked at MediaGazer. Look at some of the sites they include in the MediaGazer aggregation: Media Matters, HuffPo, Gawker, Mediaite, Washington Monthly, etc. How is it that I rank on Memeorandum with those sites when it comes to political commentary, but I don’t rank with them on MediaGazer?

Readers probably don’t give a damn about this kind of inside-baseball stuff, but in the eternal quest for more traffic, more influence and more money — because there are bills to be paid — shameless capitalism requires me to ponder these things.

Herman Cain on Obama: ‘I’m Listening to All This Bulls–t That He’s Talking About’

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The winner of the Florida straw poll gets “worked up” in an interview with my young friend Chris Moody:

After a few caffeine-heavy refills at our corner table, I asked him about President Obama’s new effort to raise taxes on the wealthy, and Cain just about blew a blood vessel–especially when I mentioned the part where Obama says it’s about “math” not “class warfare.”
“Can I be blunt? That’s a lie,” Cain said, before the sound of his voice began to rise noticeably higher. “You’re not supposed to call the president a liar. Well if you’re not supposed to call the president a liar, he shouldn’t tell a lie. If it’s not class warfare, it’s highway robbery. He wants us to believe it’s not class warfare, oh okay, it’s not class warfare. Pick my pockets, because that’s what he’s doing!”
Cain paused, took a breath and looked at me.
“I’m not mad at you, I just get passionate about this stuff,” he said. “I have to tell people because I get so worked up . . . . I’m listening to all this bulls–t that he’s talking about, ‘fairness’ and ‘balanced approach’ to get this economy going.”

Read the whole thing. Cain tells Moody that on two days, he thought about quitting the presidential race: “That’s how frustrating a campaign can be . . . But think about the number of days we’ve been on this campaign. Two ain’t that bad.”

There are times in life — and obviously, Herman Cain knows this very well — when survival is victory. He was counted out and ignored, and certainly it must have been discouraging. But he kept showing up, until he found himself at a proverbial intersection, as I explain in today’s American Spectator column:

What Herman Cain did in Orlando this weekend was both completely unexpected and entirely predictable. As late as Friday afternoon, none of the pundits expected the Atlanta businessman to win the Florida GOP’s “Presidency 5” straw poll. But if what it took to win was a dynamic speaker who could bring a roomful of grassroots Republicans to their feet, Cain’s victory was in some sense inevitable.

“Send Washington a message!” Cain thundered from the stage of the Orange County Convention Center, prompting one of seven standing ovations he received Saturday in his speech preceding the vote in which he stomped Texas Gov. Rick Perry so badly that the Republican front-runner may never recover.

Perry’s disastrous debate performance Thursday — in which he said opponents of college tuition subsidies for illegal immigrants “don’t have a heart” — was the precipitating event of Cain’s triumph. As the old saying goes, luck is the intersection of preparation and opportunity, and Cain was perhaps uniquely prepared to take advantage of the opportunity Perry’s stumble presented. . . .

Please read the whole thing. We all must deal with discouragement, and Herman Cain’s persistence against the odds is an inspiring example.


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Shock And XAU

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by Smitty (via Galt’s Girl)

It isn’t clear whether this will be more than a promotional stunt:

However, the Swiss Stock Exchange has not been deterred from new involvement with the yellow metal. Together with Scoach Switzerland, the stock exchange for structured products, the management has the plan to introduce the listing and trading of products in so-called XAU gold units – which have an exact value of one troy ounce of gold – in October. Gold will act just like a currency: paying the profits of investors from speculative transactions. The same applies if an investor had to pay the bill on losses from transactions in Swiss financial markets – in this case the difference could be offset in the form of gold. Investors who want to make use of the new gold currency must open an account with Swiss financial services provider Six Securities Services. All transactions made through this account will subsequently be calculated in the XAU gold units that work in the same way as any other paper currencies such as the US dollar or the euro.

If nothing else, this development may help that slow-learning head of the Federal Reserve figure out if gold is money.

Interesting times. We may need to End the Fed before the Fed ends us.

Underscoring The Wisdom Of The Founding Fathers

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by Smitty

As we approach the endgame on this administration, the clear winners: the Founding Fathers, who recognized the frailties of human nature and poured so much wisdom into the Constitution.

The two-year turnover of the House of Representatives has done a marvelous job of checking the power of a President whose international credentials clearly mean he hasn’t had clue #1 about what really makes America tick. And tick off.

Jimmie Bise, amongst the mellowest fellows I’ve ever met, is Volcanically Pissed Off at the President’s antics in California:

I don’t like to use the word “lie” much when I write about politics, because the word has been so poorly-used by the left over the past eight years. In this case, however, I believe it is entirely warranted. Barack Obama said something he knew was not true. He did it intentionally and for his own personal political gain. What’s worse is that his lies were clumsy and delivered with all the political skill of a six-year old child explaining to his Mom that an invisible monster broke into the kitchen and stole the cookies from the jar.

Then again, consider the audience, and read the whole thing. Also take a glance at the Conservative Commune, who links Bise but offers a great deal more background on the President’s anti-American campaign.

Via WyBlog, Larry Jackson offers more background.

As of today, he is making a three-day campaign/fund raising swing on the West Coast, ending in Denver. He is going on the attack during this trip, pulling no punches.

Again, read the whole thing.

Now, the Founding Fathers gave us a Constitution that at least affords us the chance for something better. They knew, having just crawled out from under an authoritarian thumb, that a similar leader could arise in these United States.
Couple of points:

  • Don’t make it personal, no matter how personal the Bad Man gets. BHO is symptomatic, but he is not the disease. Merely voting him out does less good than you’d think.
  • Keep in mind: the problems are economic.US energy policy sucks, the monetary policy sucks even more, and the entitlement mentality has sapped the American zest for liberty to an alarming degree. You’ve had a Presidential candidate tell the truth about Social Security in a very big way, and now he’s being thrown under the bus. Can Americans handle the truth?

I think the country is still half-awake. The growing awareness of what is wrong is there. What is lacking is the leadership and guts to take the pain of correcting the mess.

You cannot take a moderate approach to cancer; hence the disquiet with the smooth-talking blue-state RINO possibilities for President. They either give good concession speech to BHO’s second term, or continue to expand the federal government, to the detriment of liberty.

We must restrain this federal government, as the Founders would have it.