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    Sue, Sarah, Sue? No.

    Sue, Sarah, Sue? No.

    Sarah Palin justifiably is outraged at the latest Joe McGinniss outrage.

    In addition to knowing that McGinniss and Random House published lies about her, Palin now has evidence not usually available to libel plaintiffs, in the form of an e-mail obtained by Andrew Breitbart in which McGinniss admits to not having the evidence to back up much of the “gossip” which ended up in the book.

    Palin’s attorney has written to Random House notifying it of the evidence and the knowingly false nature of the allegations.  While the letter does not itself assert that a lawsuit will follow, the letter does put Random House on notice of a possible claim and demands that all electronic evidence be preserved.

    Many are speculating that a lawsuit is the way for Palin to go. I disagree.

    I advocated Palin litigating on a strategic level in the case where Gawker obtained and leaked excerpts from Palin’s book prior to publication.  The litigation made strategic sense in that case because the only legal issue would have been the rights of Palin and the publisher to the literary work, but the lawsuit would have given Palin an opportunity to explore the anti-Palin smear machine, epitomized by Gawker, and to uncover and expose the connections. There would have been almost no downside to Palin.  Her publisher decided to settle, and Palin understandably went along.

    The McGinniss/Random House situation presents a very different legal and strategic playing field.

    Palin is a public figure and has a high burden of proving actual malice.  Given McGinniss and the e-mail, it’s a good start, and if McGinniss is prone to e-mailing, things could get interesting.  And certainly, putting it to McGinniss and the other anti-Palin smear merchants will be emotionally satisfying; McGinniss’ e-mails with various “sources” should prove interesting.

    But putting Random House on notice puts other publishers on notice that if they hire someone like McGinniss they will be challenged, which has achieved much of the deterrent effect already.

    There also are other aspects which would be negative for Palin.  Her family, friends, business associates, political consultants and just about everyone who knew her would be subjected to subpoenas and depositions.  While she may not have anything to hide, the slanderous creepy stalking of McGinniss will seem like a picnic compared to the litigation of a libel suit by a public figure.

    But even more important, the litigation would take place when Palin has better things to do.  Like running for President, or if not, working to elect Republicans.  If McGinniss is able to distract Palin from her goals, McGinniss will have accomplished far more than the smears in his book.

    In many ways Palin has won the battle of the haters.  The best revenge will not be a libel lawsuit, but removing from office the worst President and Democratic Senate since the Great Depression.

    Stay focused.


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    L.N. Smithee | September 27, 2011 at 4:27 pm

    Anyone who wants to go through suing someone for defamation should go to the New York Times webpage and do an advanced search for “Steven Pagones.”

    In 1987, Al Sharpton and attorneys C. Vernon Mason & Alton Maddox accused the former NY prosecutor (among other local white law enforcement figures) of kidnapping, beating, and raping Tawana Brawley, smearing her with feces, and leaving her in a garbage bag, all without a shred of evidence. During the investigation into the bizarre alleged assault, the three publicly dared Pagones to sue them for accusing him, saying that he was afraid of facing them in court.

    After a grand jury concluded Brawley had pulled a hoax to avoid punishment for being out late, the three refused to back down on their slanderous statements, and Pagones sued them and Brawley. Brawley fled the state, refusing to show in court. For the remaining three defendants’ trial, the courtroom was a circus, with screaming matches, accusations of racism, and jurors being dismissed left and right.

    A YEAR LATER, the trial ended with Pagones being awarded a pittance of the multimillions he sought ($345,000). Still, Sharpton refused to pay his share of the award. Fat Alfred was threatened with garnishment of his wages, which he failed to acknowledge existed (he said that the expensive suits he wore were “borrowed”). Eventually, Sharpton’s share was paid by wealthy black businessmen, including former Manhattan borough President Percy Sutton & in/famous attorney Johnnie Cochran. To this day, Sharpton stubbornly refuses to apologize for defaming Pagones. Even though Pagones has been exonerated beyond a reasonable doubt, that doesn’t matter to the unreasonable.

    As much as I would love to see McGinniss and the motley crew of losers that dedicates their lives to public urination on Palin take the witness stand under penalty of perjury, I don’t think she should sue absent absolute certainty of victory. Otherwise, it’s not worth it. The burden of proof in such suits is stratospheric, and if you lose, it leaves the impression — among lazy thinkers — that false accusations are true.

      BannedbytheGuardian in reply to L.N. Smithee. | September 27, 2011 at 8:31 pm

      I can see your point but 25 years is a long time. If the case were prosecuted today – maybe a different outcome. Maybe not.

      There is a subterranean narrative developing that the German financiers of RH have had Nazi connections. Heck if they even existed yet alone survived & even prospered in these years it is enough to stain their reputations.

      Now that would make a good book. ‘Obama & his Nazi friends ” .:)

    If I was in Sarah’s position, I think I would accept your advice and decline to push this matter into litigation. It will just be a waste of her most valuable asset, her time.

    I enjoy reading your legal thoughts on current events involving our litigious culture when you have the opportunity to express them.

    I bet the classes you teach are interesting as well as thought provoking and your class time is treated as the precious commodity that it is.

    The threat of being sued, like the threat of being hanged, concentrates the mind wonderfully.

    Hopefully those at Random House are giving “Stalker Joe” and his “anonymous sources” a closer look.

    huskers-for-palin | September 28, 2011 at 12:56 am

    It’s not the monetary damages which concerns the publishers, it’s the DISCOVERY PHASE that’s got them in a tizzy.

    What McGinniss did was “penny crime” (relatively speaking), but what would cause a BIG stir is if the emails were accessed by the lawyers and all of the dirty little secrets, embarrasing remarks, political connects and inside-the-biz info get out into the public. That along would make them quietly settle.

    In situation like this, it’s not the orignal offense that gets you but the backgound info which leads to other, more serious stuff.

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