I'm at it again, with this five AM piece. Lawyers will be working all weekend, I assure you, on the ramifications of the ABC muckumentary, "Path to 9/11." This was written in the wee early hours, so keep that in mind if you decide to trash. Still, I think it will hang together.
Specifically, we are addressing the tort of defamation:
Defamation is a public communication that tends to injure the reputation of another. It includes both libel (written defamatory statements) and slander (oral ones). The definition of defamation varies from jurisdiction to jurisdiction, but "there is common agreement that a communication that is merely unflattering, annoying, irksome, or embarrassing, or that hurts only the plaintiff's feelings, is not actionable."
Major legal disputes of all kinds, even potential ones that have not yet come to court, have a life cycle. They spin out a lot of work in anticipation of different courses of action. Even if nothing is filed in the matter of PT911, the papers are being readied because to start drafting Monday will be too late. I've done it often enough in similar situations not to know it when I see it. Like pornography.
Clinton's lawyers (probably representing Sandy Berger and Madelyn Allbright as well) are going to be drafting a motion for an injunction and pulling all the public figure defamation cases they can find. The big one is NY Times v. Sullivan:
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
(Note also that there is a false story floating around that Adolf Hitler won a defamation suit against young interim Senator Alan Cranston--it wasn't defamation, it was a copyright suit based on Cranston having the audacity to publish an unabridged version of Mein Kampf that included the anti-semitism which had been scrubbed for American readers.)
The Clinton legal team lawyers are also pulling together their theories of damages and preparing the suit for defamation. More on that below.
ABC's lawyers are preparing documents (filings, research memos, legal briefs) to defend against a possible request for an injunction. In addition, ABC's, and if they are smart, YWAM's attorneys are doing the counter-research on defamation.
Meanwhile, Disney, which is shielded from direct liability for ABC's actions by virtue of stock ownership rather than direct control, might want to be checking on whether allowing, after ample warning, a Disney subsidiary to expose the corporation that has the most to lose from a tarnished image, i.e., Disney, could be grounds for a shareholder derivative suit against the board for mismanagement and a resulting loss of value to its trademarks and image, resulting in likely diminished stock value. This is why I think Disney is the Achilles heel in all this.
I would also guess that this weekend, flies on multiple walls will see a lot of behind-the-scenes negotiating, or at least attempts to negotiate. Bill Clinton has been or will no doubt be on the phone personally with Disney Chairman, George Mitchell. ABC attorneys are burning up the lines with YWAM's mouthpieces. Independent affiliates are probably on the phone with ABC's attorneys seeking promises of indemnification if they air the show. It's a bloody mess--trust me, I've been in the middle of bloody messes before though no one has seen something this big in tort law outside of Ford, Abbot Labs (i.e., Tylenol) or Erin Brockovich.
Sometimes suits are filed just to make a point, which can come into play when celebrities are allegedly defamed. It's tough for someone routinely in the public eye to win such a lawsuit, though those cases are increasing in number indicating a greater willingness to challenge alleged defamation over-riding conventional wisdom that a suit just brings more exposure to the negative information.
But as difficult as it is for celebrities to win in a defamation suit, this one has all the earmarks of a suit that has some legs. Let's talk procedure:
To begin with, at first I thought this would likely to be filed in New York State court since I thought there wa no diversity of citizenship required for federal jurisdiction. Bill Clinton lives in New York and, I thought, ABC was headquartered there. But in my research, I learned that, thanks to Disney's brilliance, Burbank, California is "the official headquarters of the American Broadcasting Company." Okeedokee--we've got a federal case here, and I'd guess Bill Clinton files in New York Federal Court. California has the advantage, however, of a four-hour time zone delay. Either would be a very good choice of venue, and the choice is Bill's
(Caveat: Choice of Law. Since there is no federal defamation law, the court will have to decide this under New York State or California State law. I think there may be California statutory law that might be pertinent, but I haven't researched New York law. Any lawyer who wants to do so, please provide insights on both the statutory and choice of law questions. This analysis is based on general common law principles.)
An injunction is a court order making someone do or not do something. That's the first remedy available; i.e., don't let the program air. The standard for receiving an injunction is that if the court does not grant an injunction changing the status quo, the plaintiff will suffer immediate and irreparable harm for which money damages cannot adequately compensate. That's why the SCOTUS should never have granted the injunction in Bush v Gore--there was simply no immediate harm in allowing a legal state election process to continue to conclusion when the Constitution provided procedures for interim succession. That's when I knew we were flirting with fascism and Scalia was a traitor.
Filing for an injunction against a program that hasn't aired yet to keep it off the airwaves is double tough. That's where some serious First Amendment rights come into play, and the courts are predisposed to letting the public sort it out. But the weakness ABC has is that the program has been shown to about 900 right-wingers (see the many diaries on this), and it will be broadcast (unless ABC delays) in Australia by Monday morning, U.S. Eastern Time. I'd argue that the defamation has already taken place and this injunction is to prevent further defamatory utterances (yeah, that's what they're called). So I wouldn't rule out an injunction being granted but I would not bet the farm on it.
Regardless of injunctive relief, the next step is the suit for damages. There's no reason to suppose it can't be prepared over the weekend. Hell, with Lexis and word processing I could do a half-ass decent job of it alone over two solid days and late nights, but it would be nice to have a couple of associates to help. The key procedural question after the injunctive ruling is, can it survive a motion to dismiss?
The motion to dismiss that will be filed by the defendants--ABC, YWAM, and any number of identifiable individuals (screenwriter, producer, director, etc.) will be based, of course, on First Amendment rights and will be evaluated by the judge as follows: Taking all inferences or disputes of fact in the most positive light possible for the defendant, is there enough left of the case that a jury would potentially still be able to find for the plaintiffs?
Based on what we've read, yes. There's a shitload of folks ready to testify the key defamatory scenes were completely invented--Hunter covered it yesterday but there's about a million links on this by now. The 9/11 report evidently does not contain supporting materials (I haven't read the report, I'm going on what has been said). This case cannot be resolved without testimony. It will go to trial.
At trial, the issue becomes whether the plaintiffs can prove the elements of a case of defamation against a public figure. This means that they must show the elements of the case:
1. The statements are defamatory--well, yes; having someone advertise to the world that you were thinking about your next move to defend the blowjobs you received when you should have been protecting 300 million Americans is certainly defamatory on its face, as are the other scenes we have heard about. The other plaintiffs can similarly show defamation though not, perhaps, as dramatically. One down.
2. The statements are false--this is because truth is an absolute defense. Yes, again, we have very solid testimonial and documentary evidence here from what we've read. Two down.
3. The defendants acted with malice--this is the Sullivan standard for defaming a public figure, who is harder to defame than a slug like you or me because taking oneself willingly into the public eye is an implicit consent to a certain amount of the inevitable slings and arrows. This requires proving to the jury that the defendant acted with malice which is proven by establishing the defendant's knowledge that his or her statements were not true or at least made with reckless disregard for the truth. Again, what we've read seems to show that. Three down, one to go.
4. The last piece of the puzzle is DAMAGES. Damages are usually presumed to flow from a defamatory statement but in a public figure case, this is not so easy. Some proof may be required, i.e., "special damages," but damages are, indeed, both assumable and provable here by the extreme nature of the subject matter itself and the individuals involved who are being defamed, a U.S. president and his staff.
The next question is, how much? Tort damages are by their nature subjective. Why don't you tell me how much you would want me to pay you for putting up a billboard falsely saying you beat your spouse? You have AIDS? You allowed someone to be killed by your negligence? You allowed the most horrible act of terrorism in world history to take place by your inattention to official duties?
Now, it's one thing if you are an ordinary person, but what is the reputation of one of four living ex-Presidents worth? I think $100 million is good for starters. Here's where the defendants have some hypothetical wriggle room--if Clinton's reputation is tarnished, maybe it's not worth so much--except Clinton came in second in a hypothetical election for President of the World after Nelson Mandela. Did I say $100 million? Let's double, nay, TRIPLE that.
Then there's Madelyn Allbright, Sandy Berger, and I'm sure a few more folks can allege plaintiff standing by inference, even if they are ultimately ruled out. So we have several hundred million on the table right here, right now, especially if the program airs over the broadcast network.
Then there are the separate lawsuits that could be brought by survivors of the victims. Note, I say could be brought. I think a class action suit for infliction of emotional distress is very possible. Normally, this is an intentional tort, but some cases for negligent infliction have succeeded if I remember my law school days, and again, given the unique circumstances, I think a court is inclined to give this one a full hearing. Multiply this out over, what, at least 10,000 class members or more and again, we get to a hundred mil or so pretty quickly--and it only takes one to file.
Note that the defendant's motives will also play a part in all of this, and again, we have evidence of motives that are truly despicable. This should open the door to punitive damages--damages imposed to prevent others from engaging in similar conduct:
The purpose of punitive damages is to punish a defendant and to deter a defendant and others from committing similar acts in the future.
Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. punitive damages may be awarded only if defendant's conduct was malicious, or in reckless disregard of plaintiff's rights.
Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another.
Conduct is in reckless disregard of plaintiff's rights if, under the circumstances, it reflects complete indifference to the safety and rights of others.
That's enough for a claim, based on our fact pattern here.
Of course, independent affiliates, those not owned by ABC, would be subject to lawsuits on their own if they were to broadcast, since every repetition of a defamatory utterance is itself actionable. Same goes for independent tort actions against those stations rather than ABC alone. And completely separate defamation suits are possible in Australia or wherever else the program might air outside the U.S. that is amenable to such suits.
But for it to get this far is symptomatic of some of the worst lawyering I can imagine. ABC should have relegated this to cable, or direct to video, or just walked away. My guess is, they didn't know the full scope of what they were seeing, or that executives were told one thing, shown another, and believed a third. Maybe it never got to the lawyers at all, maybe they were given assurances by the execs, and maybe monkeys will fly out of my anus. Maybe they failed to check the 9/11 report themselves (if an outside firm vetted, that's a malpractice claim there by they way). Maybe ABC has contract breach claims against the producer.
And don't forget possible shareholder claims against Disney if it fails to act. And of course, all the discovery that will go on should reveal some amazing things that can make their way into the public domain if made a part of a lawsuit. Or additional lawsuits.
That's how the cumulative liability here could flirt with The Big B as in "Billion."
None of this might happen. All of this might happen. The truth is usually somewhere in the middle.
Can't wait for Monday.