The Spectacle Blog
Perhaps you haven’t heard about the letter that Sarah Palin’s lawyer sent Random House, so let me begin by filling you in on the background:
Joe McGinniss last year made headlines by renting the house next door to the Palin family in Wasilla. McGinniss recently published an anti-Palin book that was almost universally panned by critics as an ill-sourced smear job and it appears to be a commercial flop. Some of the more sensationalized sex-and-drugs-and-crime stuff in the book made headlines for a few days, but once other journalists saw what sloppy work McGinniss had published, his book was dismissed as an overhyped hatchet-job. Even such notorious Palin-haters as Keith Olbermann and Rachel Maddow have snubbed McGinniss. And then …
Andrew Breitbart published an e-mail that McGinniss sent in January to Jesse Griffin, a name that should ring a bell with American Spectator readers. It was Griffin who peddled a bogus Palin divorce rumor in August 2009, which was almost instantly exposed as a lie. Griffin then lost his job as a kindergarten teaching assistant when it was revealed that Griffin had been writing obscene things about pornography and masturbation on his pseudonymous anti-Palin blog. Two months after he was exposed as a lying pervert, however, Griffin boasted on his blog that he’d met McGinniss in Alaska and that McGinniss had proclaimed himself a “huge fan” of Griffin’s blog.
So in January of this year, McGinniss wrote a nearly 900-word e-mail to Griffin, explaining that lawyers for Random House had pointed out that several of the anecdotes in McGinniss’s manuscript were completely unsubstantiated and nothing more than “tawdry gossip.” Yet as Breitbart demonstrated, several of these anti-Palin smears were included in the published edition of McGinniss’s book, without any apparent additional reporting by McGinniss. Palin’s brother, Chuck Heath Jr., issued a statement calling McGinniss’s book “one lie after another.” Heath’s statement described how McGinniss “included in his book comments falsely attributed to me by one of his unnamed sources” and didn’t even contact Heath to verify whether he had said what these “sources” said he had said. As I wrote Saturday, that’s “journalistic malpractice of the worse sort.”
Perhaps not realizing that he was making a bad situation worse, McGinniss responded to the publication of his e-mail to Griffin by telling Jon Bershad of Mediaite that he “published only those allegations which I found to be credible.” With this statement, McGinniss professed himself an authority on the credibility of allegations against Sarah Palin — and this is the same McGinniss who is a “huge fan” of Jesse Griffin’s discredited blog!
As a judge of what is “credible,” then, McGinniss is a dubious authority, and his e-mail to Griffin looks very much like Exhibit A in the prospective defamation case described yesterday in the letter Palin attorney John Tiemessen sent to Random House:
“[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.”
Tiemessen’s letter warned Random House not to destroy any communications which might be relevant to such a lawsuit and is therefore (lawyerly types tell me) what is known as a “litigation hold” notice. Tiemessen’s letter is not, however, a “threat” of a lawsuit, no matter how many times headline writers have used that word to describe it. What he sent Random House was the first step toward “a claim that may be brought,” a legal communication necessary to preserve evidence and prevent Random House from covering up evidence that that their editors, executives and lawyers knew of concerns about the factuality of McGinniss’s book. The letter strikes me as tantamount to “see you in court.”
However, the seriousness of Tiemessen’s letter and the potential legal vulnerability of Random House have been mocked and derided by those suffering from Palin Derangement Syndrome. For more than three years, Palin’s enemies have become accustomed to seeing bloggers and tabloids spread libelous assertions and obscene speculation about the former Alaska governor with no apparent repercussions. Having convinced themselves that Palin is evil incarnate, the PDS sufferers are apparently willing to believe any heinous smear that McGinniss published. And so their reactions have included such nonsense as David Magee’s column today:
But here’s the problem with suing 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.
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.
Thanks to McGinniss’s e-mail to Griffin, the Palins have Random House in a bad situation, and the only question is whether the Palins will stop short of a court trial against the publisher. It is worth noting, however, that Tiemessen cited an Alaska law in his letter to Random House. So the expense of flying McGinniss, Random House editors, executives and lawyers to Alaska would be added to the costs for Random House to defend such a case. And these witnesses would almost certainly be subpoenaed to testify, because of a comment at a left-wing blog Sunday — before the letter from Tiemessen was sent — in which McGinniss stated:
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.
Air travel to Alaska isn’t cheap. And exactly how Random House’s attorneys “made an independent judgment about the trustworthiness” of sources they had never even met would certainly make for lively court proceedings, if such a case ever went to trial.
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Brandt Hardin | 9.27.11 @ 8:25PM
I’m sure she’ll sue in a heartbeat! She IS Ruthless and will do ANYthing for money. Lawsuits grease the wheels of capitalism and Palin’s a model capitalist selling herself the whole way! See what I mean with her indecent proposal at http://dregstudiosart.blogspot.....in_15.html
W| 9.27.11 @ 8:30PM
Would you sue if someone wrote this stuff about you, or your wife, and it was not true?
Brian| 9.28.11 @ 12:07AM
Brandt Hardin is a slimebucket "artist" spamming this site with his worthless crap. Don't provide him with hits. It's utterly predictable left-wing hate.
Pattyin MD| 9.28.11 @ 7:25AM
I 'd watch my back if i were you Brandt. The next letter from Palin's Lawyer is coming to you. Also you know her trademark was approved. Hope you have a lawyer of your own. Scumbag
FastJohnny| 9.28.11 @ 9:12AM
Brandt, what is with the Jr High artwork? It would be comical if it wasn't so creepy. It appears that you have some sort of personality disorder at work.
H.B.G.| 9.27.11 @ 8:43PM
I love that you can write that Palin's enemies don't understand the libel case against McGinness ... then just a few lines down the page write that "Even such notorious Palin-haters as Keith Olbermann and Rachel Maddow" DO understand and don't support McGinness. And then to try to support the charge you end up citing some fourth-tier blogger nobody's heard of, and although you claim that this is widespread the only one you site is that one obscure person.
Well done, sir.
big bob| 9.28.11 @ 6:16AM
I think we just found #2!!!
Occam's Tool| 9.27.11 @ 9:08PM
There are things one can say against a public political figure and not get sued, for example, "Obama is an antisemitic swine." But, if I were to insinuate that he is an actual minion of Satan, complete with goat hoofs, he might have a case. Of course, it is unlikely he would waste his time.
But McGinness set himself up for a deliberate hit job, and he did have a legitimate reputation. I hope she wins.
Susan Kirian| 9.27.11 @ 11:02PM
Palin will never win this, neither in court nor in public opinion. The more details that come out, the worse her reputation suffers. Random House has some of the best attorneys in the business---it is improbable that they did not anticipate such a suit. And Palin's attorneys? Small-time guys. Who has the deeper pockets?
The spectacle that Palin herself will be forced to testify under oath is what every leftist looks forward to.
All this stuff about defamation suits stuff is just spin and stuff. There will never be a trial or "discovery". And no legal process will ever help Palin's acceptance as a leader.
Milhouse| 9.28.11 @ 12:10AM
You're nuts. What details have "come out"? None. How has her reputation suffered? It hasn't. In what business do you think Random House's attorneys are the best, exactly? And what does it matter whose pockets are deeper? What would a suit cost Palin? There are plenty of excellent lawyers who would take this case on contingency, because it looks pretty solid. The only question is whether she wants to devote the time to it; it would be almost impossible to run it and a presidential campaign, so if she files soon then we'll know she's not running. But for that exact reason she may delay filing until a more convenient time for her.
sinanju| 9.28.11 @ 1:35AM
I'm no legal eagle, but if this is true it looks like Palin has a leg to stand on. The Palin haters have been outraged and offended at her for her refusal to good-naturedly wear the traditional Republican "kick-me" sign on her back, a la the Bushes. Sarah and Todd filed charges and gave testimony against that adorable little scamp who hacked her emails not long ago and I hope they follow up on this one. She needs to make clear at every opportunity that she's not a noblesse oblige, country-club RINO and that she hits back, hard, at those who play dirty.
George S| 9.28.11 @ 3:09AM
Writing your delusions in an anonymous blog is one thing, saying them in person under oath is quite another. Palin won't be forced to testify under oath to refute libel; the onus is on the accuser to prove that what was written was absent of malicious intent. All the court will be interested in is whether the publisher knew that the words they were printing were false, or acted in reckless disregard of the truth and published them anyway. 'Malicious intent', 'reckless disregard for the truth', and 'absence of malice' are the key phrases in play. The publisher must get a clean bill of health on all three before Palin is asked anything more than her name and occupation.
Kate1230| 9.30.11 @ 12:14AM
Before anyone gets themselves all worked up
Before anyone gets themselves all worked up considering the outcome of a possible legal suit initiated by Palin against Random House & McGinniss, you might want to read the following from the author about this very topic, possible legal suit.
================================
On Sunday, at a book salon I hosted at firedoglake, McGinniss had this to say about the vetting of his book on Palin:
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.
We'll soon see who is supporting Palin on this meretricious lawsuit inspired by one of the sleaziest racists on the web.
===============================
Please note that the letter spoken of between Gryphen & McGinniss was dated several months before the book was published. Also, Random House didn't hesitate to reply to Tiemessen that they have everything they need to back up the info contained within the book. In Palin's words, RH is saying "bring it on". She'll never do it, letting her past be brought out to be further discussed by all those people who knew her best and like her the least. Imagine what is contained on dozens of hours of conversations and info from 70+ NAMED SOURCES.
Will this be enough to stop her from running for office or should I say, will this be the excuse she'll use?
Kitty| 9.28.11 @ 4:48AM
You could be right there will be no trial, because I think the publisher will settle out of court. I can't imagine the publisher wanting more bad PR than they're getting now. Years ago McGinniss was sued for plagiarism and that case was settled out of court.
geoffb| 9.27.11 @ 11:36PM
"Random House has some of the best attorneys in the business"
Then it will be very interesting when Palin's attorney gets to read all the discussions that McGinness had with them since, as per the letter.
“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.”
Brian| 9.28.11 @ 12:01AM
I wonder how Palin's lawyers will argue that the court has personal jurisdiction of McGinniss in Alaska.
Milhouse| 9.28.11 @ 12:15AM
He rented a house there, he lived there, he did the research there, and the book is being marketed there. That's more than sufficient.
Brian| 9.28.11 @ 1:48AM
Brain-freeze. Forgot about the whole move-in-next-door thing. You're right. And Random House books containing the allegedly defamatory statements in Alaska, so that look sufficient to get personal jurisdiction over it, too. But now I wonder how that related to certain principals at RH that Palin might want to sue, e.g., the head of the Crown imprint.
(On another topic, wasn't Crown once known as a "conservative" imprint that still publishes, e.g., Ann Coulter?)
MOS was 71331| 9.28.11 @ 1:04PM
Random House, with Bennett Cerf at the helm, published "Atlas Shrugged." Whatever Cerf's politics may have been, he published the most important and influential defense of liberty and capitalism of the 20th century.
Interested Conservative| 9.28.11 @ 12:34AM
RSM - The comments to this piece range from the simply ignorant to the perhaps non-specialist attorney.
I wonder if you've discussed this with a litigation specializing in public-figure libel issues?
As most seem to understand, the SCOTUS set a high bar in the Sullivan case, but it's just that - high, not impossibly out of reach.
Overlooking some of the nonsense, those on the left may want to consider what "malice" means, and the extent to which a court may determine it.
Much of the Palin criticism is simply malicious, and also fully protected by the constitution (a mild example is simply calling her "Caribou Barbie" - opinionated, childish, meaningless, and malicious all in one), but where McGinniss and Random House may be sunk is where they've published "facts".
Usually the defense can argue away from both "malice" and "facts", but they may be stuck arguing only the facts here.
IIRC, Bill Buckley won a similar case against Gore Vidal and either Esquire or Vanity Fair, although I don't know if it got to a verdict. Gov. Palin seems to be in a similar situation here, at least.
Kate1230| 9.30.11 @ 12:31AM
If she would go to this extent over gossip directed at her, it makes me wonder why this "wonderful mother" never bothered to defend the gossip regarding her daughter as to her being the mother of Trig. In her emails, Palin says to her staff, "I wish there was something I could do to get the media to leave her alone. (this is BEFORE she was nominated for V.P. and before Bristol told her Mother she was pregnant w/ Tripp) she and her staff discuss ideas and talk about trying to use a local gossip columnist. However, when the ADN approaches her about putting this nonsensical story behind her, does Palin take them up on it? No, she refuses all offers of sitting down with them so they can get the entire story out there and protect her daughter. Why didn't she sit down with one of the reporters she respected, show them a birth certificate, medical records, etc. anything to stop the harassment her daughter was going through and what Palin was allegedly so upset about. Did she do it? NO! Did she ever try to put a stop to it? No! Her story raises more questions than it answers especially since she originally spoke, she has changed the location of his birth from Palmer to Anchorage in recorded speeches, along with the gestational age at which he was born, 7.5 mos vs. 8 mos., also on record. When you're a compulsive liar as Palin is, it's hard to keep stories straight apparently.
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Rick Patel| 9.28.11 @ 7:41AM
Thanks, Mr. McCain, for an article a layman can understand. You don't have to be a lawyer to know that the incessant trashing of Sarah Palin & her family must stop, and if a court judgement will stop some of the slime, she is right to sue.
David W| 9.28.11 @ 9:00AM
It's about time. I hope the suit goes forward but is settled (though if Ms. Palin can rip the publisher and McGinnis a new "one" during a trial that would be fine with me). I'm tired of the left constantly slandering/libeling/falsely accusing the right of all sorts of things. McGinnis went too far and should be punished for his arrogance. Let this be a lesson to the leftwing trolls out there.
MOS was 71331| 9.28.11 @ 6:50PM
I don't believe Sarah Palin's must prove McGinnis's libelous statements false. They need only prove that he published the statements. McGinnis must them to be true.
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Yeah, it seems that they just dont understand that.