Possible Future Headline: “Kevin Jennings Sues Hannity and Limbaugh for Defamation“

Say you read tomorrow that Department of Education official Kevin Jennings has filed a defamation lawsuit against Sean Hannity and Rush Limbaugh. What are your first thoughts? Second thoughts? Thoughts about success? Thoughts about how this might change things?

For those of you who aren’t following this story are some of the some clips from Media Matters that list some of the smears and how factually incorrect they are about Jennings (link)

One thing about politics that both fascinated and horrified me is the way the smear machine works and how the media not only play along, but are a major market for the dirt. And after the damage is done there is no method for the person smeared to bring the people who started the smears to account, let alone the media who repeated the smears.

I’m sure the lawyers here can give me dozens of reasons why defamation lawsuits are a bad idea, a waste of time and not worth the trouble. In fact, I’ve already been told many of those reasons myself and I agree with most of them. ExpertLaw gives lots of the reasons not to start one, and the one I can all relate to is this:

Another big issue is that defamation cases tend to be difficult to win, and damage awards tend to be small. As a result, it is unusual for attorneys to be willing to take defamation cases on a contingent fee basis, and the fees expended in litigating even a successful defamation action can exceed the total recovery.
– Law talking guy Aaron Larson at ExpertLaw

And when you are going up against big time media lawyers who have multiple millions to spend it is even more daunting. But I want to start getting the concept out there that we should start looking for the opportunity to support someone in a defamation lawsuit against the right-wing media.

As you know, I believe that there are multiple ways to weaken the right-wing media and in today’s world I think making their lies, violent rhetoric and character assassination financially less profitable is one of the best.

I think the time has come for the right wing media to pay the financial price for their slander. It would send a message, and financial messages are the only ones the right-wing media hear. We can say it’s not about the money, it’s the principle, but it’s really about the money.

They have been profiting on their lies and slander for decades and if we can’t stop it, we can at least ensure it’s not a huge money making activity for them. Do you think Fox is happy about the 100 advertisers that have left Glenn Beck? They have to subsidize him now.

What is Our Role in This?

Here is my prediction: When there is a defamation lawsuit there will be concerned posts on our side about, “the chilling effect to free speech” and “ooh, we better be careful, what if they do it to us?”

Before the lawsuit pixels are even dried on the screen we will see discussions about how the name calling and accusations are “just politics” and to be expected. There will be false comparisons between Sean Hannity’s deliberate repeating of incorrect information after it has been debunked and comments from some blogger who said something bad about George W. Bush. They love their false equivalencies. The right will scream, “Bush was called worse things, he didn’t sue anyone!” (He just had his critics rounded up and put in free speech zones, but I digress.)

How can we help if Jennings or someone else targeted by Beck, Hannity or Limbaugh does file a suit?

“We got your back, defamation suit filer!” (in a rhetorically sense that is)

How do we support someone in a defamation lawsuit? First we need to know the facts. Then we educate ourselves on the concept and carry our understanding to arguments with wingnuts AND discussions with our own friends. We spread out and challenge the accepted way of thinking by the media and our side if necessary.

I Am Not A Lawyer (IANAL) Nor do I Play One the Internets

It looks pretty clear to me that when someone repeats incorrect information after they have been corrected it falls into the “actual malice” territory. These people aren’t journalists, however they will be treated as journalists if a defamation case comes up. They have all the protection of journalists and none of the responsibilities. Since IANAL I’ve started reading up on libel and slander and defamation, maybe some of you should too.

The lawyers among us can focus on how the case may or may not succeed but the rest of us have to keep our eyes focused on the big picture. Character assassination in the right wing needs to cost them financially, nothing changes unless there are rewards or consequences. Right now it’s all rewards and no consequences..

Spocko’s Fun Fact! Did you know that during the run up to elections right wing radio stations are designiated “press entites”? They get a “press exemption” for giving infomercials to their canidiates and causes so that their parent corporation don’t have to list all that free air time as a donation. Isn’t that HILARIOUS!?

When KSFO/ABC/Disney had my blog shut down using a cease and desist letter to my ISP claiming a copyright violation I knew that they didn’t have a leg to stand on. This is because I educated myself on fair use and spoke to folks at the Electronic Frontier Foundation. The fair use of audio clips was a story the media could talk about so they had more than just a he said she lied story. They could talk to experts! But the experts weren’t the ones going around in the blogosphere supporting me, it was bloggers and commenters just like you.

I made it clear to everyone that this wasn’t a boycott, we weren’t threatening the advertisers. We wanted the advertisers to hear for themselves just how extreme this speech was and then suggested they follow their own internal guidelines.

But I had to educate people on what I was doing and what this was about because often when I spoke to people about what I was doing some got up tight. They would launch into, “I don’t like what they have to say but I’ll defend to the death their right to say it!” before I had a chance to explain I was simply alerting the advertisers and letting them decide.
This is something that we can do after a lawsuit is filed, educate people about defamation and remind the people out there that destroying someone’s reputation by repeating statements they know to be false is wrong.

Creating a Liberal FAQ

For me it helps to discuss this issue using what I like to call the “Liberal FAQ”. This is a document that I create for myself so that I can answer the Devil’s Advocate questions. I’ve found that these questions are often based on ingrained right wing views. I also use it as an opportunity to hone my own arguments.

How Will the Media Respond?

Let’s think about how the media might respond and our response.

1. I think they will circle the wagons around Hannity and Limbaugh. In my experience no matter how loathsome the mainstream media sees the comments from Hannity or Limbaugh they are holding in their head this thought, “Ohhh, this could be me getting sued, I better tread lightly.”
2. They will bring in all sorts of serious experts. They will opine on slander, libel, free speech, private vs. public figures blah, blah, blah. The experts will guess that the suit will fail will out weight the experts who believe he will win because a win would have huge implications and they know Fox will fight this as hard as they fought the Bono swearing case, which they took all the way to the Supreme Court — where they lost.
3. They will talk about the smear merchants who never got punished but got rewarded becase they admire their savvieness. We have seen three glowing stories on Limbaugh, Savage and Beck in the media lately. Their actual offensive words are scrubbed out. They admire people like Karl Rove and Lee Attwater. (Rove and David Gregory are dance partners!)

   They will bring up John McCain and how someone did a push poll that cost him the nomination in 2000 but it will be McCain’s problem for not pushing back.For balance they will bring up name calling from Randi Rhodes, MoveOn.org and a blogger who created a website attacking Glenn Beck. “You see? Both sides do it. It’s just politics, it goes all the way back to Jefferson!” They won’t talk about the media’s role in the libel and slander of Al Gore and John Kerry. They won’t see how they are the main audience for Swift Boaters and how they failed in that story but they will blame people like Kerry for not responding correctly.

We need to start saying to the people profiting from character assassins that intentional character assassination can also be a liability and we aren’t going to sit around and let you smear our people.

The mainstream media will report the story because it is news. When they cover the story that will be our chance to write about it. It will be the soccer ball kicked into the air for us to focus on for one news cycle.

Why Bother with Someone Else’s Reputation? Or to quote Captain Jack Harkness from Torchwood, “An injury to one is an injury to all.”

Somewhere I read a story about a guy who spread a lie that destroyed a kid’s reputation. The kid’s tells the dad who says, “In my time your name and reputation were important, they meant something. You need to stand up for yourself, get back your good name”.

The son then proceeds to force the bad guy to admit he set the kid up and a plucky journalist who was duped with the wrong story runs a big front page retraction. I’m pretty sure that I’ve even a version of this fictional story as an episode of Smallville, or maybe it was a movie staring Gidget, but the point is it’s a great story set up. It’s got conflict, ethics, emotion, a successful resolution, maybe even some romantic entanglements between the plucky journalist and our hero. In 43 minutes the journalists have corrected their mistake and his reputation is reclaimed.

I LOVE those kinds of stories. Sadly, in real life most plucky journalists have been laid off. People who have been through lawsuits tell me that even if you win you lose. I spoke to Sidney Blumenthal about his case against Drudge and AOL. The media need Drudge and they defended him so vigorously that Blumenthal was forced to drop the suit because he could afford to keep it going. You can imagine what someone would be up against if they to take on Fox.

I’m so Glad We Had This Post Together

My Vulcan side can point out the strategy and tactics to effect change. But it is my human side that gets angry and says, “Stop destroying these people’s lives! Stop lying!”

When Carol Burnette successfully sued the National Enquirer in 1981it sent a shock wave through the tabloids. They needed to be more careful with their allegations or other cases would be filed. A serious successful case of this kind could do the same for talk radio and cable tv.

Live Long and Prosper
Spocko