Patterico's Pontifications

9/26/2011

Palinageddon!!! Sarah Sicks Her Lawyers on Crown Publishing/Random House!

Filed under: General — Aaron Worthing @ 5:50 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

So recently there has been this book “The Rogue” by her stalker biographer Joe McGinniss that alleged, among other things, that Palin had an affair with Glenn Rice.  Several people wondered why Palin wasn’t suing, and we lawyers have patiently explained that she not only has to prove that the claims are false, but that there was legal malice involved (defined slightly differently than normal malice), which is very, very difficult.  So a failure to sue is not the same as an admission and truthfully it risks giving a false sense of veracity.  The jury could find that the story was false, but not maliciously published, and the media might very well spin it as vindication for McGinniss.

Which is why it is interesting that she is right now threatening to sue

Sarah Palin’s family attorney John Tiemessen has written a letter to Maya Mavjee, the publisher of the Crown Publishing Group, a division of Random House, that Palin may sue her, the company, and the book’s author Joe McGinniss “for knowingly publishing false statements” in his book released last week, “The Rogue,” ABC News has learned.

The book was widely panned by critics for using unnamed sources to criticize Palin and her family. Tiemessen cites an email they have access to in which McGinniss writes that attorneys from Crown Publishing told him “nothing I can cite other than my own reporting rises above the level of tawdry gossip. The proof is always just around the corner, but that is a corner nobody has been able to turn” and that McGinniss “ran out of time” to sufficiently source the book.

You can read the whole letter for yourself, here.  As for the email referred to in the lettter, apparently it is the one Breitbart published at his site Big Government.  Which proves again that Breitbart is the man…

…with the master plan.

[Posted and authored by Aaron Worthing.]

101 Responses to “Palinageddon!!! Sarah Sicks Her Lawyers on Crown Publishing/Random House!”

  1. Okay, can we top 450 comments this time? Please??!!

    Aaron Worthing (73a7ea)

  2. Great, Aaron, I figure 300 comments from the less savory Freudian constructs that call themselves happyfeet and EPWJ….

    SPQR (26be8b)

  3. I hope she sent that same letter to epwj.

    JD (cae88c)

  4. If EPJW gets a registered letter, smellyfeet’s got to be hearing footsteps.

    ropelight (a02388)

  5. Well, i’ll say normally i don’t like defamation suits. i figure the best way to deal with bad speech is more speech. And too often these people need to get a life.

    But the Palin’s really have cause in this case.

    Aaron Worthing (73a7ea)

  6. Interesting. At the very least this seems to suggest that Glenn Rice is on board. I can’t imagine her lawyer sending this letter to Crown Publishing if there was any possibility of Glenn Rice selling his story to the National Enquirer.

    Of course the media will spin this possible lawsuit that “it’s always about herrr–she’s always looking for attention.”

    elissa (3a8545)

  7. ==can we top 450 comments this time? Please??!!==

    Aaron, in life you should always seek quality, not quantity.

    elissa (3a8545)

  8. In light of elissa’s comment #7, I withdraw my #4 and this one too.

    ropelight (a02388)

  9. She had to threaten to sue to keep Todd from committing a felony…
    see, she is compassionate;
    look at the medical attention she saved Joe and his editors.

    Another Drew - Restore the Republic / Obama Sucks! (6ee779)

  10. It was kind of cruel for you to post this, Aaron. EPWJ is currently lashing himself to the mast of the ship of his fevered brain, trying to resist the siren call of discussing taxation and publicity and how they related to a certain former governor.

    I know that she has little chance of winning a suit. But didn’t McGinnis have to pay out to a subject of one his hatchet jobs in the past?

    Indeed he did.

    http://articles.latimes.com/1987-11-24/news/mn-24281_1_fatal-vision

    But you know what I would rather see? McGinnis face Todd Palin in a cage match. Televised on PayPerView; proceeds going to charity.

    Honestly, you write dirt about someone and make money from it? There should be some way to even the score.

    Simon Jester (d15a6a)

  11. For EPWJ not to comment in this thread would be, well, taxing.

    See what I did there?

    Simon Jester (d15a6a)

  12. simon

    you presume that i followed that nutty thread much closer than i did.

    Aaron Worthing (73a7ea)

  13. I’m pretty sure that some of the, um, spirited critics of Ms. Palin posting here have huge posters of the woman in their bedrooms. IYKWIMAITYD.

    Simon Jester (d15a6a)

  14. I wonder what Beldar things about the possibility of success here, if he happens to see this post.

    Brian (f23e83)

  15. @AndrewBreitbart confirms @JoeMcGinniss email was sent after the manuscript was submitted to #RandomHouse

    ian cormac (ed5f69)

  16. I would think journalists everywhere would throw their collective weight behind Palin as McGinniss has certainly tainted an already defamed profession.

    McGinniss says he decided which sources were credible “on the basis of 40-plus years in journalism. By this point in my career, if I can’t tell what’s true and what somebody’s making up for nefarious reasons, I’ve been in the wrong business all this time.”

    In his eyes of grandeur he is invincible in his observations and judgments…unlike the mere mortals in law enforcement who still have to do the painstaking work of actually interviewing witness, gathering sworn statements, corroborating stories and claims, etc.

    Dana (4eca6e)

  17. ” … sicks [sic] her lawyers …”

    Gerry (11bc4f)

  18. I don’t get it does this mean she’s running?

    it’s all tea leaves with this woman

    happyfeet (3c92a1)

  19. It is a damned if you do and damned if you don’t. If she does sue the headlines/meme will be that Dunn’s, bailey’s and Levi’s books must be true since she didn’t sue them…

    vor2 (9a4241)

  20. I wonder what the damages might be for “attempting to alter the outcome of a Presidential election” with knowing false statements. Considering that Barack Obama may well spend $1 billion on his re-election campaign, actual damages in excess of $100 million might be valid, and punitives could raise it towards a billion.

    Not that a jury would award such, but they might, which has GOT to give Random House pause. Sarah Palin could own the company should she sweep the table.

    Kevin M (563f77)

  21. There is actual proof of the bad faith that McGuinness indulged in this project, and since it all comes from the same wretched stew pot, it’s a warning to others who would endeavor on similar projects, in the future,

    ian cormac (ed5f69)

  22. BTW, I do not buy the argument about how a suit would pump up sales of the book, since any post-suit attempt by Random to market the book would ALSO pump up any damages should they lose.

    Palin is not stupid. Given that she’s not actually running, I can think of no better way to prosecute the “lamestream media” in the public arena than to have this high profile suit paralleling the election campaign.

    Palin’s forte is as scene-stealer, not as Presidential timber, and this is such a fine stage, with all the right folks as villains.

    Kevin M (563f77)

  23. Palin is running for something?

    Who knew?

    Ag80 (9a213d)

  24. You know, I hate, absolutely hate guys who do what McGinnis did. Hate the bastards. I hate their publishers. Hate the bastards.
    I am a compassionate man, and so some of the more extreme embellishments invented to add spice to executions aren’t, in my view, absolutely necessary. But I could be convinced. Pretty easily.
    In the meantime, in this effete and decadent world, Palin suing them all into bankruptcy would be a start. A start.

    Richard Aubrey (cafc94)

  25. With rights come responsibilities, and the responsibility to publish material that is true (let alone objective and complete) has been lagging for a looooong time.

    MD in Philly (3d3f72)

  26. McGinniss says he decided which sources were credible “on the basis of 40-plus years in journalism.

    That sounds like a defense against malice. Time was acquitted of malice because it said it had relied on an informant (whose identity it protected) who (it said) had always proved reliable in the past. How was it to know that this informant would suddenly turn out to be a flake?

    Here McGuinness and Random House have no outside informant on whom they can pin this, so instead they’re relying on McGuiness’s own purported expertise in sorting truth from fiction. It seems to me that for this to work they needn’t convince a jury that he is an expert; all they to show is that they believe in his expertise. If these stories turn out to be false, they can feign surprise and say that they will have to be a lot more cautious in future before relying on his gut feelings.

    Milhouse (ea66e3)

  27. McGinniss did a lengthy Q & A at a blog the other day. Could have sworn it was FDL, but, no longer there; either scrubbed, or memory fails me. Some of his falsehoods (lies) were most likely put in writing once again. I did not have enough Ipecac to read through it, and am on a deadline right now, but, I am 99% certain I got the link from Andrew Breitbart’s tweet. Please bring down this pig.

    sybilll (fd6e0a)

  28. Of course the palinbots are laughable to say th eleast.

    DohBiden (d54602)

  29. EPWJ has been taken away by the nice men in white lab coats.

    Btw Seth Mcfarlane is a democrap douschebag.

    DohBiden (d54602)

  30. Why do democraps consider Palin an authoritarian?

    DohBiden (d54602)

  31. Not only that Palin was no hitler.

    DohBiden (d54602)

  32. sybill

    try looking for a google cache of that interview.

    Aaron Worthing (73a7ea)

  33. What’s the big deal if she did have an affair with Glen Rice, anyway?

    I think that’s hot.

    I’d probably like her even better if that turned out to be true.

    Major Kong (f4574f)

  34. Posted by sybilll: “McGinniss did a lengthy Q & A at a blog the other day. Could have sworn it was FDL”

    I think this is it (McGinniss answers questions in comment section): FDL Book Salon Welcomes Joe McGinniss Q & A

    Just Passing By... (8c00ef)

  35. On Sunday night Andrew Breitbart and Joel Pollak did an interview with Stephen Bannon’s Victory Sessions radio (KABC). I believe they referenced Joe’s answer comment #37, in the above Q&A, as being very helpful to the Palin’s lawsuit in regards to Joe waving his attorney-client privilege by discussing what the Random House lawyers said and did.

    In Joe’s answer to a question in comment #37 he says: Bottom line: not only my editor, but Random House attorneys verified every source, in some cases speaking directly to the sources themselves. I have dozens of hours of recorded conversations. Random House attorneys listened to them all, then made an independent judgment about the trustworthiness of the sources. No material from an unverified source is included in the book. Many details were omitted for that reason.

    Just Passing By... (8c00ef)

  36. Here is what McGinnis wrote at a book salon I hosted on Sunday at firedoglake, when asked about The Rogue’s vetting:

    Bottom line: not only my editor, but Random House attorneys verified every source, in some cases speaking directly to the sources themselves. I have dozens of hours of recorded conversations. Random House attorneys listened to them all, then made an independent judgment about the trustworthiness of the sources. No material from an unverified source is included in the book. Many details were omitted for that reason. Obviously, any writer would like to be able to name every source. In this case, the climate of fear the Palins created in and around Wasilla made that impossible. After seeing how Sarah reacted to my moving next door, many people became afraid for their own safety and said they’d talk to me only if I guaranteed confidentiality. When I felt I had to, I did. Anonymous sources have a long and honorable tradition in U.S. journalism. Look at Woodward and Bernstein and “Deep Throat.” Just last week, the NY Times had a story about the Mets third baseman and quoted an anonymous source. In twelve books written over 42 years, I’ve never been through a legal vetting like this one. It lasted for months.

    Philip Munger (834287)

  37. Just in case anybody missed it (and based on some of the comments, some people are assuming something that isn’t there) nowhere in this story does it say that Palin is considering suing over the allegation of an affair with Glenn Rice.

    Icy Texan (dbb96d)

  38. WAKE UP, ERIC! IT’S TIME TO SPEW SOME MORE ANTI-PALIN BILE.

    Icy Texan (dbb96d)

  39. One problem Palin has is that if she files a libel lawsuit, she will presumably have to identify in the complaint a list of false statements in the book.

    However, that list will probably be interpreted by her political opponents to mean that Palin is admitting the rest of the statements in the book are true.

    Joshua (5f3206)

  40. …I’ve been in the wrong business all this time.”

    That’s probably his only factual statement about this whole thing.

    Ralph Gizzip (5ab3ea)

  41. Folloew Phil Munger’s link, and you’ll get a glimpse of what she’s been facing for three years.

    ian cormac (ed5f69)

  42. I think it will be settled before it even gets to discovery, with no monetary damages, no admission of wrongdoing by Random House or McGiness and the book pulled from the shelves and destroyed.

    MunDane (8daa8a)

  43. Oh good grief, Max Blumenthal and Tommy Christopher are the proof of veracity at Ian’s link! Amusing.

    Philip Munger, what you purport McGinniss to have said at your salon is certainly very different than what he himself is quoted as saying at the Daily Beast and Atlantic,

    McGinniss says he decided which sources were credible “on the basis of 40-plus years in journalism. By this point in my career, if I can’t tell what’s true and what somebody’s making up for nefarious reasons, I’ve been in the wrong business all this time.”

    And honestly, if I didn’t already suspect he was out to get her from the get-go, his own admission rather confirms it,

    “I wrote the best book about her I was able to write,” McGinniss says. “Now if that causes people to feel sorry for her, I would suggest they might be missing the point. Maybe I should have made it a little stronger.”

    Dana (4eca6e)

  44. Zogby, concurrent with FL straw poll, has Cain at 28%, Perry 18%, Romamba 17%.

    Reminds one of the jiggle rack from numerical analysis.

    Cain is acceptable but a foreign policy cipher and as former KC Reserve chair a little to invested in our current troubles.

    gary gulrud (790d43)

  45. The Urkel campaign is way too early, too lame, too transparent.

    Boehner, McConnell, Perry and Romney give no hope that the GOP is reformable.

    81% consider government an abject failure.

    Time for a real change. Burn it down.

    gary gulrud (790d43)

  46. I agree that the book will be pulled and destroyed, but in the age of ebooks — and torrents — I’m not sure that will help.

    Kevin M (563f77)

  47. Isn’t the correct word in the title “sic”?

    dfbaskwill (ca54bb)

  48. Mcginniss had a one night stand with Bawney Fwank.

    DohBiden (d54602)

  49. McGinniss says he decided which sources were credible “on the basis of 40-plus years in journalism. By this point in my career, if I can’t tell what’s true and what somebody’s making up for nefarious reasons, I’ve been in the wrong business all this time.”

    Sounds like the Dan Rather defense and we all remember how well that worked for him. “…even if the documents are false, that the underlying story is true.”

    Jay H Curtis (8f6541)

  50. The media has thrown progressively vile, baseless, absurd, over the top, and false allegations regarding Palin and her family since McCain selected her as the VP candidate. They have utterly failed to destroy her and they are rightly worried. The beauty of this lawsuit threat is that it effectively muzzles the msm (known as the enemedia) as they too will be sued if they publish knowingly false information.
    She will run and she will win.
    The Palin-Cain Liberty train will be rolling soon (I hope).

    Markon (dd04a9)

  51. Christie is a gun grabbing troll.

    DohBiden (d54602)

  52. So when will Seth Mcfarlane put his gangrene infested foot in his mouth in regards to this?

    DohBiden (d54602)

  53. If McGinnis found that the Palin’s had created an atmosphere of fear in Wasilla concerning him that intimidated anyone from talking to him, why did he locate there?
    Why didn’t he set up shop in Anchorage, and have people come there (with proper travel compensation) to talk to him?
    His decision to set up residency next door to the Palin’s in Wasilla was all show-biz, and lent nothing to the veracity of his work.
    He only hoped to provoke an incident, one that never occurred.

    Another Drew - Restore the Republic / Obama Sucks! (ade72a)

  54. McGinnis’ malevolent spying on the Palin family by renting a peeper’s perch next door where he could see into the bedrooms of Palin’s young daughters tells you all you need to know to judge the slimy bastard’s motives.

    Joe McGinnis is exactly the sort of pervert who should severely beaten with a baseball bat.

    ropelight (860fc0)

  55. Liberals run the media…………..yes they may be jews.

    DohBiden (d54602)

  56. Obama screeching about repubs opposing the bailout of the auto companies…………….hey didn’t bush start that?

    DohBiden (d54602)

  57. Dohbiden, STFU.

    Gah, you make me sick with your one liners.

    Boo.

    Andy (b63f79)

  58. STFU

    nice rebuttal.

    DohBiden (d54602)

  59. Palin should sue them to death.

    DohBiden (d54602)

  60. Too bad this is not the 1800′s. Todd could either give him a good thrashing, or shoot him down in the street like a rabid dog.

    peedoffamerican (ee1de0)

  61. he could beat him up to where he had to get stitches!

    happyfeet (a55ba0)

  62. I hope Joe Mcginniss gets his nuts kicked in.

    DohBiden (d54602)

  63. @ Brian (#14 — 9/26/2011 @ 6:57 pm): I’m flattered that you’d wonder about my reaction.

    Defamation cases are always hard to win, and in even the most righteous and clear-cut examples of defamation, there is a substantial disincentive to suing because, in the context of determining how much the defamatory statements damaged the plaintiff’s reputation, it puts the plaintiff’s entire life under a high-powered microscope. In other words, there are very real, very powerful downsides to bringing a defamation case even if the case is a very strong one that the plaintiff ought to win.

    Aaron is absolutely correct, of course, that Palin — as a public figure — would have to meet the higher standard established by New York Times v. Sullivan. That higher standard does indeed result in the early dismissal of most defamation cases brought by public figures, and it deters man thousands of such cases that might otherwise be brought. But the high bar that NYT v. Sullivan deliberately sets is not an impossible bar to hurdle.

    I haven’t read McGinniss’ book, and I’m not eager to do so. To give a well-informed opinion about Gov. Palin’s chances of success if she sued, one would obviously need to do that. And one would need access to, and cooperation from, Gov. Palin (and probably also her family and friends) in order to assess the weight and persuasiveness of the evidence that particular statements in the book are not only false, but that they were made with the sort of knowledge of falsity or, more likely, reckless disregard of the truth, that can get one over the NYT v. Sullivan impediment.

    Were I one of Gov. Palin’s political consultants, my private counsel to her would probably be that regardless of the strength of her potential defamation lawsuit, the downsides of bringing such a case probably outweigh the upsides.

    But if she were willing to absorb the enormous inconvenience, disruption, and embarrassment associated with the pretrial discovery process, and she wanted a lawyer who’d take this case on a contingent fee notwithstanding her public figure status and the NYT v. Sullivan impediment, I sure wish she’d give me a call.

    Beldar (5a73df)

  64. “deters man thousands” —> “deters man[y] thousands”

    Beldar (5a73df)

  65. I’m glad you answered the commenter’s question, Beldar. With that, it begs a few others…Do you think she should have just sucked it up then? Has she no other legal recourse?

    And in her specific case, having to meet that higher standard and already having had her family publicly raked over the coals – repeatedly – would following through with the suit be that much worse?

    Dana (4eca6e)

  66. When the economy collapses everyone will feel it including the actors and actresses who voted for the omeister.

    DohBiden (d54602)

  67. Dana, I think it’s entirely possible that she might win a defamation case if she were to decide to bring one. There is indeed legal recourse available to her through a civil lawsuit for defamation. How strong her claims may be depends on facts to which I don’t have access, and I haven’t even read the book. So other than agreeing with Aaron that as a public figure, she’d have to surpass a tough (but not impossible) legal standard, I’m not sure what else to say, at least with any certainty. If you’re interested in my instincts and guesses, though:

    My spidey-sense, after reviewing what’s in the press about this, inclines me to think her case might be pretty good — especially if she didn’t allege or make any effort to recover “special damages” and she asked instead for only $1 plus an adjudication that the book does indeed include false statements of fact that were published with actual malice. She doesn’t need the money; it would be hard for her to prove financially compensible damages to her business or property. And as for embarrassment and mental anguish, this book is at best a good-sized pond in the midst of an ocean of harsh, unfair, and often-defamatory discourse about Gov. Palin.

    If I were Random House, I’d respond to this letter by saying, “Thanks for putting us on notice of your representation. If you will advise us very specifically of each objective statement of verifiable fact in the book that you believe to be false, we’ll give you a specific response.”

    As for whether following through with a lawsuit would be much worse than what she’s already been subjected to (and will continue to be subjected to), I can’t answer that because I don’t even have a strong instinct or guess how bad it’s been. All I could say is, if she chooses to fight these fights, and to fight them in court through a libel case, it’s going to be an enormous fight with an enormous impact on her and her family — and unlike her fights in other forums, in court she will have much less influence and control over what happens than she’s used to having elsewhere. Once filed, a case like this is going to demand a lot of her personal time and attention, and that will continue for months and months. I can imagine many very likely scenarios in which this lawsuit would absorb a non-trivial fraction of her waking hours, maybe a fraction with a single-digit denominator (i.e., 1/9th or bigger). Even if things go perfectly and she ends up crushing McGinness and his publisher in court, is that a worthwhile use of her time for the next couple of years? I seriously doubt that, but that’s a question she ultimately would have to answer herself.

    Beldar (5a73df)

  68. Thanks for your thoughtful reply, Beldar.

    My speculation with regard to Random House is that their lawyers likely did a thorough, professional job, but then the ultimate decision-maker(s) in that outfit added practical considerations that tilted the analysis toward the decision to publish:

    1) As with all defamation plaintiffs, Palin must repeat the defamation (and have news stories repeat them again 100-fold) in order the try to sanction it.

    2) More specific to Palin, she does not want to have her public image defined by the filth spewed by her detractors, when she does have substantive views to offer concerning policy, and she does have (in my opinion) great leadership to offer in politics.

    Because of 2), I’m puzzled as to why she’s apparently seriously considering suit. I don’t think her lawyers specialize in defamation, but maybe someone in that firm – or some other lawyer they’re teaming with – advised her that she could take a kind of “sniper” approach; just focus on 2 or 3 claims which are clearly false, and whose falsity is so apparent that bad faith (actual malice) can be found with limited discovery. (I’m not saying that’s plausible.)

    But all this – especially the last remark – is speculation.

    It’s a tough gig, defamation suits; it seems the only legal way to remedy an outside party sullying your name, is to have to jump into the filth yourself.

    Brian (f23e83)

  69. I heard a rumor Joe Mcginniss was sucking Bawney Fwank.

    DohBiden (d54602)

  70. Whatever negatives there are to going through with a defamation suit, she and her attorneys must be aware of them as well, which adds to the interest in what they have going for them.

    I agree that it will be a very consuming thing, and doubt it would work with trying a presidential run.

    The issue is raised as to how this would compare to “what she has already been through”. Well, one could say she has experienced the negation and loss of her governorship due to frivolous ethics charges, and with that the loss of any future political ambition because of the “she’s a quitter” tag. If she really is a dedicated public servant, those things are not made up for by getting rich on Fox News. (Besides, she’s got happyfeet’s respect to win back.)

    Beldar, you said, “… in court she will have much less influence and control over what happens than she’s used to having elsewhere.” I think I know what you mean in one way, but in another way she has had no control over what others say about her. If the facts are on her side, maybe getting the discussion in the form of sworn testimony would actually give her more control. Does one trust the legal system to do justice, or should she fear the uncertainties of the real world even if she has a case “that I could win” (not even being a lawyer).

    MD in Philly (3d3f72)

  71. Brian: Random House’s lawyers represent Random House’s interests. Those coincide with McGinniss’ own interests in some respects, but Random House’s lawyers are interested in covering Random House’s butt first and foremost. Milhouse’s comment (#27 — 9/26/2011 @ 9:09 pm) points this out quite neatly. What constitutes “reckless disregard of the truth” for purposes of a publisher’s vetting of its writer’s work may be a much, much lower standard than what constitutes reckless “reckless disregard of the truth” by the writer himself.

    Everything McGinness is saying about Random House’s lawyers and their care may be true, in other words, but it’s not at all inconsistent with the possibility that McGinness himself wrote with a reckless disregard for the truth. It amounts to an assertion that “the lawyers for my publisher have created an impressive paper trail on the basis of which they’re confident they can get the publisher off.”

    The obligations of writer and publisher are different; so too is their potential exposure in a defamation case.

    Beldar (5a73df)

  72. Isn’t the correct word in the title “sic”?

    Yes, or rather “sics” since it’s in the present tense. Aaron, please fix it.

    Milhouse (ea66e3)

  73. All I could say is, if she chooses to fight these fights, and to fight them in court through a libel case, it’s going to be an enormous fight with an enormous impact on her and her family — and unlike her fights in other forums, in court she will have much less influence and control over what happens than she’s used to having elsewhere.

    The timing of this seems telling: If she had been seriously considering throwing her name in the race, I can’t see where should would be able to fight that battle as well as this one. It makes me think she wasn’t seriously considering in the first place.

    It’s ironic you suggest that if this went to court she would have far less control over what happens because the prior years of vicious attacks seem to render her powerless in a lot of ways. I can’t imagine what even *less* control would look like.

    Dana (4eca6e)

  74. MD in Philly (#72 — 9/27/2011 @ 6:53 pm), you wrote:

    Beldar, you said, “… in court she will have much less influence and control over what happens than she’s used to having elsewhere.” I think I know what you mean in one way, but in another way she has had no control over what others say about her. If the facts are on her side, maybe getting the discussion in the form of sworn testimony would actually give her more control. Does one trust the legal system to do justice, or should she fear the uncertainties of the real world even if she has a case “that I could win” (not even being a lawyer).

    All excellent questions, and I didn’t explain my point about “control” adequately.

    What Gov. Palin has, when she’s outside of court, is the opportunity to ignore what others say about her; or, if she chooses to respond, she has the opportunity to limit her response. In a lawsuit, however, she forfeits those opportunities, and instead she must respond to whatever the other side asks, subject only to whatever limitation she can persuade the judge to impose. Particularly in defamation cases, judges traditionally give defendants a whole lot of latitude; and in a defamation case brought by a public figure, even more latitude is likely to be given to the defendants, and even less protection is likely to be given to the plaintiff.

    She also literally gives up control of her calendar. The court can tell her where and when to show up to testify, and what potential evidence she has to turn over beforehand. Since it’s her personal reputation involved, her personal involvement will be essential throughout her attorneys’ preparation of the case; “tell me what happened on the night you interviewed Glen Rice” is not something that can be delegated to an aide or a family member.

    I trust the civil justice system to do what it’s supposed to do most of the time. But she’s a very atypical plaintiff, one who’s particularly vulnerable to the downsides that attend defamation litigation. I just have serious doubts about whether the vindication the courts might give her vis-a-vis McGinniss would be worth the investment of her time and attention that it would cost her.

    Beldar (5a73df)

  75. Progressives used to have good intentions.

    DohBiden (d54602)

  76. You’re right, I hadn’t thought about the distinction between defendants, and consequently different ways of accessing liability. (But I think I do OK for a guy living in a van by the river.)

    Brian (f23e83)

  77. Beldar, while it’s true that the defence I brought up in my comment #27 works better for Random House than for McGuinness, I think it has a good chance of working for him too. He, too, can claim to have been fooled by his own brilliance. He can claim to have been convinced that his years in the business had given him a nose for the truth, and to be shocked and horrified to find that they haven’t. He will be much more careful next time, he may say, but he honestly thought these stories were true because they sounded true to his expert ears, as he thought they were. In other words, he is his own expert witness, whom he can sacrifice to get out of a libel case.

    Milhouse (ea66e3)

  78. Progressives used to have good intentions.

    I doubt it.

    Milhouse (ea66e3)

  79. Milhouse, I take your point (#79). McGinniss will surely say that nothing he did was so far outside the prevailing standards as to be “in reckless disregard” of the truth. He will claim expertise in defining and applying those standards based on his years in the industry. And in particular he’ll claim he was not being reckless when he based his reports on rumors from dicey sources whom he refuses to identify.

    But his years in the industry have included other scandals; he was hardly a poster-boy for the journalistic ethics even before this book. Other than his own rather undistinguished history peddling his writing, he is completely lacking in credentials to show real expertise.

    And my hunch — again, I haven’t read the book, so this is only a wild guess — is that there will turn out to be many occasions on which he departed from that standard as interpreted and applied by others in that profession. There will be dueling expert witnesses who have doctorates and who’ve published papers or written books on journalistic ethics. And there may be many in his profession who will say, of at least some of his likely transgressions or misjudgments: “Well, that may have been wrong, and I wouldn’t advise doing what he did, but I’m not willing to say it was ‘reckless.’”

    My speculation, though, is that some of what he did will be so patently unreasonable that no amount of post facto blessing by defense expert witnesses, nor McGinniss himself, can persuade a jury it wasn’t reckless.

    Beldar (5a73df)

  80. I doubt it.

    Feel free to.

    How long before the left call Palin an islamohpobic white supremacist?

    DohBiden (d54602)

  81. I just have serious doubts about whether the vindication the courts might give her vis-a-vis McGinniss would be worth the investment of her time and attention that it would cost her.

    What are the odds that Random House’s lawyers made exactly the same calculus? What are the odds that their advice consisted of “look, to cover our own fundaments we must advise you that publishing this book would almost certainly be actionable, but at the same time she’s very unlikely to sue you, for these reasons, so if you like your chances go right ahead; just don’t blame us in the unlikely event that she defies our expectations and sues”?

    Milhouse (ea66e3)

  82. How long before the left call Palin an islamohpobic white supremacist?

    Haven’t they already done so?

    Milhouse (ea66e3)

  83. Um yeah you got me.

    How long before they start a rumor that she had an affair with Katie Couric?

    Because opposition to islam is racist………..not

    DohBiden (d54602)

  84. Was that email, before or after the speech she gave
    after Tucson, if the latter, they would know not to to test her, on that proposition.

    ian cormac (ed5f69)

  85. Beldar, thank you for your clarifying response.

    If she goes through with the suit, one interesting issue will be the fact that she will be doing so while knowing all of the negative angles (I have to think so). The question will be whether she is making an error in calculation, a mistake out of desperation/being “fed-up”, or whether she knows something the rest of us don’t.

    I have no idea of the fellow’s name, but I’ve been told by a reliable source that one of the early “organizers” (one who developed a defined discipline) of Okinawan Karate would confirm that he was teaching things that “worked” by walking alone in nondescript clothing in the rougher parts of town. The typical gang would think they had an easy target, not knowing they were the ones who should have been frightened. Okinawan version of “You Don’t Mess Around with Jim (Slim)”.

    MD in Philly (3d3f72)

  86. Man, happyfeet and EPJW sure went apesh*t all over that thread, huh? It’s so Pavlovian. They just can’t help themselves. They’re just positively obsessed with the woman. They…

    Wait, what? They’ve hardly said a word?

    Obviously, they’re just doing this to prove us wrong, because they care so much about proving us wrong that they’re willing to conform their behavior to our expectations. Seriously, they obviously… etc.

    Anyway, if what you guys really double-secretly meant to do was put up a fence instead of blowing a dog-whistle, then more power to you. Do it more often. But I tend to think that you like the sniping more than substance, which is the only reason Palin gets talked about on this site anymore… because, honestly, Palin? Who cares?

    Leviticus (0f9f7a)

  87. Leviticus, I was convinced that they couldn’t resist.

    SPQR (d0be51)

  88. In another thread, Eric promised not to focus on Palin as much, and he’s been a man of his word.

    DRJ (a83b8b)

  89. Sorry to be so snippy…

    I just miss the good ole days, as corny as that might sound. But I’m not around much anymore.

    Started law school, DRJ – just turned in my first legal memo. It’s been going well.

    Leviticus (bd9a2e)

  90. Leviticus – Good luck in school!

    daleyrocks (bf33e9)

  91. Leviticus,

    I’m glad things are going well in your first year. It sounds like you are keeping a good attitude, which is a definite plus. You know we all wish you the best and are here to help if we can.

    DRJ (a83b8b)

  92. Thanks (daley and DRJ). I know.

    Leviticus (7acba2)

  93. Leviticus,

    Even though law schools don’t give much feedback during the year, I think most students can tell whether they’re understanding the material and learning. So it’s a good sign that you feel like things are going well. And after reading your comments for some time, I know you have the intelligence and writing ability to do well.

    DRJ (a83b8b)

  94. Palin is screwing with the ozone.

    /EPWJ

    DohBiden (d54602)


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