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Monday, October 08, 2018

Yes, please sue

Where to begin with this suggestion that Justice Kavanaugh should sue Christine Ford and the Washington Post for $ 20 million each and that the suit would be successful? This is a new talking point among conservative commentators.

I go point by point after the jump, because there is so much wrong here.

Ford has clearly libeled Kavanaugh. Libel is a published false statement that is damaging to a person’s reputation. Ford gave uncorroborated information to the Washington Post, which published it and damaged Kavanaugh’s reputation.

Uncorroborated does not mean false. Perhaps Ford's allegations are false; that they are uncorroborated has nothing to do with their falsity.

This has been a recurring theme. There is no requirement in the legal system (putting aside whether a confirmation process should be treated as a legal proceeding) that a claim be corroborated; the plaintiff's testimony is evidence. Whether it is sufficient to prove a case depends on the type of proceeding and the standard of persuasion. Perhaps a victim's statement is not alone enough to satisfy beyond a reasonable doubt, but this never was a criminal procedure. On a lesser standard such as what governs whether a person should receive a lifetime appointment to a powerful job (whatever that standard may be), uncorroborated testimony may be sufficient, depending on whether the factfinder believes that uncorroborated statement.

In a court of law, . . . the burden of proving the truth of a derogatory statement is on the defendant.

No. Kavanaugh is a public official and Ford's speech was a on a matter of public concern, whether that public figure engaged in criminal or inappropriate conduct. The burden of persuasion is on the plaintiff to prove the statement was false. And he must do so by clear and convincing evidence.

New York Times Company v. Sullivan is ripe for being overruled. Yes, the Supreme Court can overturn prior cases. See Plessy vs. Ferguson.

Justice Antonin Scalia said he abhorred the New York Times case:

NYT is not going anywhere. Not least because Justice Scalia no longer is on the Court--the event that has pushed us down the current hole. Justice Kavanaugh certainly would never vote to overrule NYT because, as Sen. Collins reminds us, he reveres precedent. So does Justice Gorsuch, who wrote a book about it. Unless NYT is not "settled law." Anyway, NYT is a cornerstone of the modern First Amendment and exists precisely so public officials cannot use civil suits to silence critics.

This belief/assumption/preference that NYT be overruled might explain the above error about the burden of persuasion as to truth. NYT shifts the burden from common law (where statements are presumed false and truth is a defense); if NYT is overruled, that shift goes with it. Which is why NYT will not be overruled.

A court should hold that Ford, dredging up a 36-year-old uncorroborated claim, is guilty of constructive malice — reckless disregard of the truth.

Reckless disregard of the truth is the NYT actual-malice standard that the author just said should be (and will be) overruled. So what he is really saying is that Ford is liable even under NYT. Maybe she is, but this contradicts the prior paragraph. And, again, I am not sure why the age of the claim or its lack of corroboration say anything about Ford's statement of mind.

(There is an interesting question whether actual malice has any place with respect to the first-person source of information talking about her own experience, as opposed to the media republishing it. Ford either believed her statement true or knew it false; I doubt there is an in-between.)

It would be poetic justice if Justice Kavanaugh could be the deciding vote — on his own case!

It would be the height of irony, actually. The author begins the piece decrying the Democrats' abandonment of the presumption of innocence, "a hallmark of Anglo-American jurisprudence and of Western Civilization." Putting aside whether the presumption of innocence (which is merely about the allocation of burden of production) has a meaningful role in a job interview, I doubt it is more of a jurisprudential hallmark than nemo iudex in sua causa--no one should be a judge in his own case.

Anyway, the real reason Kavanaugh will not sue (and that perhaps Ford,WaPo, or others might wish he would) is not that it would be "unseemly for a judge to sue." It is unseemly for a judge to spew conspiratorial Fox News talking points, but that did not stop Kavanaugh from writing and giving that prepared statement. Kavanaugh will not sue because a lawsuit will trigger a meaningful discovery process designed to get at the truth of Ford's statements. Kavanaugh would be subject to a sworn deposition taken by a competent questioner. Discovery would include depositions and interviews of numerous witnesses, not limited by the preferences of the White House or an artificial one-week deadline. The author assumes Ford is lying (and WaPo knowingly reprinted a lie). I do not know, because I have not seen anything resembling a fact-finding process. Kavanaugh suing would create that very process.

President Trump is famous for threatening to sue critics (even thought it would appear equally unseemly for the President to sue) and never following through. Even after some outlets egged him on. Apparently some members of conservative media have decided to make the same move on behalf of Justice Kavanaugh.

Posted by Howard Wasserman on October 8, 2018 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink


I continue to be fascinated by people pushing the mistaken about who it was. Why is it more plausible it is someone else? Kav has been shown to have been a belligerent drunk; he stuck his dong in a girls face in college; he seems like just the sort of chap that would do such a thing, and she says it was him. Sure, he denies it; what else is he going to do? Admit it? Trump has 20 allegations and he does not admit any of them.

Posted by: Public NME | Oct 8, 2018 7:26:56 PM

Wasserman, I have commented in between yours and my late one . Read my last one down there , and the whole issue , shall be sealed and solved .


Posted by: El roam | Oct 8, 2018 4:44:25 PM

And just to refine further my comments , and implying it here in that potential case of Ford and Justice Kavanaugh :

It would be , definitly plausible , that :

Ford statement would be revealed as untrue , and yet , not liable . And how ?? Simply :

She confused Justice Kavanaugh , with someone else , while proving , that :

Sincerely confusing between them both , and : notwithstanding , she was thinking or aiming , the importance of the public issue here , and found it of course appropriate to publish the issue before the confirmation hearing .

Now , what if only in court , revealed to be untrue . On the other hand , proven that she sincerely acted ( No malice intention to take him down ) . Then :

It would be untrue , yet , she wouldn't be liable highly likely . Why , you can't prove falsity . Falsity that is to say in defamation , the intention , to take down someone . Clearly so ,while being aware to it .

So , true or untrue , is not really always the issue in such affairs .

P.S . : there are states , where the truth paradoxically , would may cause a person to become liable in defamatory case . Suppose , one homosexual , yet " locked in the locker " , no one knows it , and that is what he likes it to be in that way . Why ?? he lives in conservative society . But , one person , would like to take him down , by publishing it . Publishing what ?? The truth . Yet , it was maliciously done , for taking him down . So , the truth , wouldn't do simply . For , it is sometimes the conduct and the result , not the underlying factual truth .


Posted by: El roam | Oct 8, 2018 4:42:10 PM

So your position is that WaPo could be liable for defamation if: 1) Kavanaugh did, in fact, sexually assault Christine Ford (i.e., Ford's statements are empirically true); 2) Kavanaugh can offer no evidence that he did not sexually assault her (as he must do under NYT); 3) he can offer evidence that WaPo did no checking before publishing the story and ran it with no clue or concern for whether it was true or false.

Posted by: Howard Wasserman | Oct 8, 2018 4:17:59 PM

Wasserman , you use wrongly the word " truth ".For the lawmaker uses typically ( not in vain ) the wording " false " not truth . False suggests also , state of mind , not necessarily only , whether it is true or not . Here I quote you and the related article :

Ford either believed her statement true or knew it false; I doubt there is an in-between....

And :

Kavanaugh will not sue because a lawsuit will trigger a meaningful discovery process designed to get at the truth of Ford's statements.

While the respectable author of the related article :

In a court of law, unlike in a court of Democrat senators, the burden of proving the truth of a derogatory statement is on the defendant. Ford would have to prove that her charges were true. We know now that she can’t.

End of quotation :

But , if true from wrong were the only issues , no free speech could come alive ( beyond evidentiary issues ) . Here I quote from Sarah Palin again :

Sullivan and succeeding cases "have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies." St. Amant, 390 U.S. at 731-732. "[S]peaking out on political issues is a core freedom protected by the First Amendment and probably presents the 'strongest case' for applying 'the New York Times [v. Sullivan] rule.

End of quotation :

This is because , the purpose has to do , with guarding the safety of free speech on one hand , on the other , not letting people , go wild , and publish , without any check , maliciously , defamatory statements .

Reaching the truth , is not really the issue . Let alone while dealing with public issues , and public figures , involving opinions of course .


Posted by: El roam | Oct 8, 2018 3:40:30 PM

If the statement turns out to be true, the newspaper cannot be liable, regardless of whether it checked.Actual malice and truth are distinct elements, as the section of Palin that you quote makes clear.

Posted by: Howard Wasserman | Oct 8, 2018 2:50:07 PM

Wasserman ,

Let's observe the NY state law , here I quote from Sarah Palin V. NYT :

"Under New York law,a plaintiff must establish five elements to recover in libel: 1) a written defamatory statement of fact concerning the plaintiff; 2) publication to a third party; 3) fault (either negligence or actual malice depending on the status of the libeled party); 4) falsity of
the defamatory statement; and 5) special damages or per se actionability (defamatory on its face).

Concerning by the way , public figure :

" must under federal law "surmount a much higher barrier" and establish by clear and convincing evidence that the Times acted with
"actual malice," that is, with knowledge that the statements were false or with reckless disregard of their falsity.

That is to say , that a clear subjective test is to be put here :

" with knowledge that the statements were false or with reckless disregard of their falsity. "

Now , the truth , can't be actually always established of course . Even in criminal case , this is not the goal ( but probability in liability , beyond reasonable doubt in light of given limited evidences ) . The same here :

Suppose that a person is meeting with a newspaper editor , telling him , that one minister is corrupt and has taken bribe . The editor publishes it , without any factual check . Just like that . The " virtual truth " would be that it is false . Not because it is false in fact , but due to the reckless or malicious publication , while knowing it is so . How knowing ?? Simply , nothing has been checked , simply published as it is . In such case , the issue wouldn't be the story necessarily , but , the clear prima facie falsity of it . And that's it . We can't target the truth and solely the truth and prevail a case of course . No case almost , would be settled or prevailed . But we learned about falsity out of circumstantial evidences among others , not whether it is purely true or not .

Here to Sarah V. NYT



Posted by: El roam | Oct 8, 2018 2:42:58 PM

But obviously your major point is correct - US law does not welcome defamation suits against public figures. Kavanaugh would be ill advised to sue unless he has some smoking gun demonstrating Ford's bad faith.

Posted by: Salem Al-Damluji | Oct 8, 2018 1:32:23 PM

That last point cuts both ways and is not an additional barrier for plaintiffs to overcome. The plaintiff wins if the statements are technically true but substantially false, or false by implication, etc.

Posted by: Salem Al-Damluji | Oct 8, 2018 1:31:58 PM

No. A plaintiff cannot win a defamation case unless he can prove the statements are false. If the statements are not false, they cannot be the basis for liability (at least not for defamation). In fact, a plaintiff loses so long as the statements are "substantially true," even if false in some of the minutiae.

Posted by: Howard Wasserman | Oct 8, 2018 1:06:11 PM

Interesting , but assertions here , are bit baseless . Just some :

First , when a person is suing for labeling and alike , he doesn't need to prove necessarily , that the truth is on his side :

Suppose that James is spreading totally baseless rumor that Daniel is taking bribe as public officer . All invented . The issue wouldn't be necessarily the fact that James is a decent public official or not . But rather , it would be sufficient for James to prove that :

It is per se made up ( the concrete story ) .Just Pure invention . Example , by showing and proving , not only that Daniel can't prove his assertion , but also , showing and proving for example , that terrible plot or conspiracy had been conceived for derogating his reputation , and based on zero factual background . So , there is also subjective test : The subjective belief and perception and conduct of the person publishing the false statements , that is a hell of evidence .

And by the way , first source or second , doesn't change much . For anyway we deal with the standard of :

Reckless disregard . Now , when you publish , as second source , something not corroborated minimally by the perpetrator , one may be held liable , surly when you are a professional ( editor of newspaper for example ) . You can't as such , buy every story , and publish it . You must check on your sources , and on the story itself .


Posted by: El roam | Oct 8, 2018 11:40:40 AM

Yes, Trump has threatened to sue all of the women accusing him. He never did, but one of the women - Summer Zervos, a contestant on the Apprentice, did. Trump's lawyers have been trying every procedural maneuver not to have his deposition taken, but the judge has ordered that discovery over the next few months. I assume Trump is dreading the day of that testimony - because, quite frankly, he is lying and there are all kinds of other accusers he can be asked about and whose depositions can be taken - with no non-disclosure agreement to protect him.

I suspect it is much the same with Kavanaugh -- he would never dream of suing because he does not want the truth to come out. Perhaps a better candidate for a lawsuit would be Julie Swetnick who may have a claim against former acquaintances who had uncorroborated things to say about her sex life; I suspect those claims will fall apart under oath.

Posted by: Public NME | Oct 8, 2018 10:01:26 AM

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