Wednesday, March 09, 2022

Why I Am Not A Fan Of Libel Actions

Sarah Palin tried to sue the New York Times. You’ve heard of her, though you might have forgotten her. Her case was so weak the judge publicly said so as he dismissed it. That’s tantamount to the court saying Palin should pay for wasting everyone’s time.

Now comes Kelcy Warren, someone I’ve never heard of, suing Beto O’Rourke for telling the truth. Warren gave Abbott $1 million in a single campaign contribution after Abbott declared the Texas electricity grid fixed following the winter disaster in February 2021. Even The Texas Tribune reported the Lege did nothing because oil and gas interests still run the state, but when Beto pointed out the same thing with the example of the enormous campaign contribution, Mr. Warren was libeled?

I don’t think so.

Rich people bring libel actions. No attorney working on contingency would touch one because such actions are seldom covered by insurance. There’s little to no guarantee of recovery of damages and besides, poor people can’t sue for being libeled. How do they prove their damages? It’s a rich man’s cause of action and usually, like this one or Palin’s suit, a claim for little more than wounded feelings. Mr. Warren doesn’t like what Mr.O’Rourke said about his contributions to Abbott, but O’Rourke was commenting on Abbott. A point Mr. Warren’s company made:
After O'Rourke's news conference, an Energy Transfer spokesperson, Vicki Granado, said in a statement that O'Rourke "clearly hasn’t read or doesn’t understand the lawsuit filed personally by Kelcy Warren." Granado said Warren does not want to stop O'Rourke from talking about the storm but wants to stop him from making "irresponsible, defamatory and highly offensive statements" related to the $1 million donation. 
"Mr. O’Rourke’s statements are flat-out false, and they appear to have been made for political gain in a desperate attempt to overcome what appears to be a weakening campaign to unseat Governor Abbott," Granado said.
However this turns out, it will be another case of a rich man using the law to assuage his feelings and assure himself he’s more important than we mere mortals. Which is pretty much the purpose of libel actions in England, where our law is rooted. Except England doesn’t have a First Amendment or an NYT v Sullivan. Libel cases seldom punish lies, mostly they punish people who have upset rich people who can afford libel suits.

Having opined so, let me back it up with the facts of this lawsuit:
To sum up: Beto's tweets, by and large, were aimed at Abbott, not Warren.  Beto, in sum, accuses Abbott of being bought off by Warren; which is not the same thing as alleging Warren bribed Abbott. And while the analysis feints at Sullivan (is Warren a public figure, or not?), most of the analysis is on common law exceptions to libel (and slander; the difference doesn't really exist at law anymore, although all the allegations here are technically libel, since they were written down, rather than made verbally).  And those exceptions pretty much eviscerate this lawsuit before it gets started.  Which is what makes it a SLAPP suit (one meant only to intimidate), rather than a serious claim that Mr. Warren has suffered actual damages.  

I haven't read the pleading, but it appears from the news report Mr. Warren is seeking damages for libel per se.  That's libel so damaging the plaintiff has suffered a loss of reputation and mental anguish.  The usual example is being accused of having committed a felony (a crime involving moral turpitude).  That would be a loss of reputation sufficient to trigger a reward for damages without showing an actual loss due to the libel. If you read the analysis above, you'll see a libel per se claim is unlikely to withstand the first challenge for dismissal based on Texas libel law.  That is, even if the statements of fact alleged are true, they don't amount to a cause of action because Texas law doesn't consider them actionable libellous statements.

But libel per quod, or without being per se, requires a showing of actual damages.  If Warren can't show that, he can't recover more than nominal damages.  Which, again, is where libel suits become the original SLAPP suits.  Warren has the money to fund this thing.  He's dinging Beto's campaign funds, and he knows it.  What does he care if he wins or loses?  He's won just by suing Abbott's political opponent.  Maybe he's scared Abbott isn't that strong this time around.  Or maybe he's just an asshole.

That's an opinion.  I'm allowed to express it.

Either way, Beto has to pay lawyers to make this go away.  And it's a waste of judicial resources (not that the courts will ever see it that way).  Most libel suits, IMHLO, are.

UPDATE:

Blogger is, as usual, not letting me comment.  I want to post this, not by way of rebuttal, but of explanation of the legal issues/issues of the legal system, involved.  I'm not arguing against the comment I would rather respond to in comments; I'm just extending my remarks here, in a more particular way.

Libel is a personal cause of action, which means it can only be brought by the person injured.  A products liability issue that results in death, for example, can be brought by the family on behalf of the deceased.  But if the person libelled dies before the court case is decided, the case is dismissed as a matter of law.  You can't libel the dead, and no one can recover damages on their behalf.

That's the problem with libel law.  It doesn't establish truth any more than a criminal case establishes innocence.  If the NYTimes lies about a government policy or action (as it did in the Whitewater reporting and the WMD in Iraq reporting), it's very damaging; but nobody can sue the NYT for libel.  The lies can't be corrected that way.  The damage of libel is that a lie is half-way around the world before truth can get its boots on; which means the lie tends to stick.  I may win my libel judgment, but the damage is already done.  Money is just a punishment against the liar, but unless that liar is also rich, I'll probably never recover the money.  (A court judgement is not the same thing as a check made out to the winner.  Believe me, recovery against individuals can be another and separate headache.)

I'm pretty much convinced libel is not an action for justice or to balance equalities.  It's a rich man's protection, because the poor can't really be hurt by lies (what actual damages do they suffer?  What reputation did they have to harm?  Yes, it's grossly inequitable, but that's how society is organized) while the rich can be; or at least have the better argument in court that they can be, based on how such damages are assessed by the legal system.  The example of the Russian oligarchs in England threatening libel suits against anyone (reporters, Tweeters, Facebook posters, what have you) is exactly on point.  They are rich, and use their wealth to threaten people who might speak truth about them.  Even in America they could do that, if they could show they were not "public figures" under Sullivan. Would they win?  The threat of expensive litigation is often enough, especially considering they threaten people much poorer than themselves.  Sure, we could require the courts provide lawyers for the defense; but that system doesn't really work out that well with public defenders in criminal cases, where the stakes for the poor individual are actually much, much higher.
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1 comment:

  1. The Thought Criminal10:17 AM

    The unfairness of the courts and the judiciary because rich people can hire lawyers, many of them, many of the most skilled and poor people can't is a lot bigger than the ability to sue for libel, using that injustice to argue against laws would probably hurt poor people who are libeled or slandered a lot more than having libel laws enables rich people to use those laws, too, to further privilege themselves.

    I'd rather the law required equal numbers and quality of lawyers and that, if the person being sued told the truth, that there be proportionate penalties for bringing a false law suit that would impact the rich in a way to discourage them.

    The more I read about the law and the courts the more I think they are primarily an engine to enforce inequality and injustice.

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