Robert Stacy McCain provides an excellent overview of what led Sarah Palin’s attorneys to contact Random House concerning Joe McGinniss’ book Rogue: Searching for the Real Sarah Palin.
Let us assume for argument’s sake that Palin does in fact have a case that Random House “knowingly published false statements” by McGinniss. Should she actually go ahead and proceed with a lawsuit?
On one hand, unlike other negative books that have been written about her, this one literally hit home with McGinniss moving in next door to her which prompted Todd Palin and several family friends to erect a fence around their property. The book not only goes after her but goes after her family. Given the tone of his tome, this certainly caused no shortage of distress to Palin and her family and a lawsuit could remedy that distress.
On the other hand, McGinniss’ book hasn’t sold well and segments of the liberal media have been openly contemptuous of it as evidenced by Janet Maslin’s disdainful review in The New York Times. One commenter at Dana Loesch’s blog put it this way, “I say McGinniss’ book will be in the 99 cent pile in a month.” But if Palin does sue it would give McGinniss’ book a reprieve from such a fate. It would become a best seller. A lawsuit could very well be the answer to McGinniss’ prayers.
After all, McGinniss is no stranger to legal action. He was sued by convicted murderer Jeffrey McDonald following the publication of his 1983 book Fatal Vision. McDonald sued because McGinniss convinced McDonald that he believed in his innocence and was going to write a book to that effect. Indeed, McDonald gave McGinniss unfettered access to him and his defense team. Instead, McGinniss wrote a book which argued that McDonald was guilty of murdering his pregnant wife and two daughters. Although the proceedings ended in a mistrial in 1987, the parties settled out of court for $325,000 which was the amount sought by McDonald. Interestingly, William F. Buckley testified on behalf of McGinniss.
Libel is very difficult to prove in a court of law. A lawsuit would likely take years, cost millions of dollars in legal fees and has no guarantee of a favorable outcome. Even if Palin were to win damages they could always be reduced on appeal as was the case with Carol Burnett’s libel case against The National Enquirer in the early 1980s. Burnett would later reach an out of court settlement with The Enquirer.
The question is would Palin rather use her resources to make a run for the White House or lend support to a candidate she thinks can unseat President Obama or would she rather use her resources to sue McGinniss and Random House? I know those options aren’t necessarily mutually exclusive. Nevertheless, assuming Palin is going to make a bid for the White House she will have to consider how much time and resources a lawsuit would divert from that effort. I completely understand her motivations in wanting to sue McGinniss and Random House especially if she can prove they engaged in “actual malice” against her and her family. But there is a risk that a lawsuit could inadvertently help McGinniss and restore his prestige as an author. In that case, wouldn’t the best punishment for McGinniss and Random House be a pile of books they can’t sell?