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Legal Jesus

And on the third day, he blawged again.


ESPN v. Deadspin.

“The Worldwide Leader in Sports” v. “Sports News without Access, Favor, or Discretion.”

It was an ugly week, and at least Deadspin lived up to it’s subtitular reputation…  For those of you not paying attention, Deadspin editor, AJ Daulerio had received a tip in early September that Steve Phillips, a former (bad) Mets GM and current (bad) ESPN baseball analyst,  had been caught with his pants down, shtupping a production assistant from ESPN.  When Daulerio ran this tip by ESPN, the WWLIS denied the rumor and denied that Phillips would be disciplined.  Turns out that was a lie; the NY Post ran with the story and ESPN confirmed that Phillips would be punished for his trangressions.  Pissed off, feeling his oats, emboldened by his boss, Daulerio hit back hard, emptying his inbox of all those ESPN sexual impropriety emails in full view of the internet reading world.  So what?

Well, there’s a legal angle here, and thankfully someone else did the leg work, because we’re half-in-the-bag and couldn’t be troubled to pull the law books down.   From FanHouse:

Let’s begin with the most important part of any defamation suit — if it’s true, it’s not defamatory. What’s more, the plaintiff (person filing the suit) bears the burden of proving the defamation is not true. Which means that many lawyers advise their clients against bringing suit because then the plaintiff’s private life is opened up for scrutiny during the discovery phase of the case. (See Clemens, Roger) And if you have any skeletons in your closet, you don’t want to get deposed on these issues. So there’s that hurdle for any potential plaintiff.
The second most important aspect of a defamation case is actually establishing whether or not someone is a public figure. Why is that important? Because if you aren’t a public figure then you merely have to prove negligence by the publisher of the false information. So if you’re a virulent or snarky writer, you want to go after public figures. Fortunately for Internet writers, the vast majority of blog posts deal with public figures. And New York Times v. Sullivan has enshrined an awful lot of protection for blogosphere publishers. In that famous case from 1964, the Supreme Court ruled that in order for a public figure to recover for defamation they must be able to prove that the statement was made with “actual malice”, i.e., a. a knowledge of falsity or b. a reckless disregard of whether it was true or false.

In the present situation, the on-air talent such as Kuselias, would clearly be a public figure. I think it’s a closer call on the executives, such as Katie Lacey, but I’d be inclined to argue that those individuals are also public figures given that their conduct as employees of a major sports company is being called into question by a sports blog in relation to a sexual harassment policy espoused by the company. Again, I think that’s a closer call, but it’s directly related to their jobs. Particularly since Lacey is director of marketing and would regularly deal with the public side of network life.


Next question, assuming these figures are all public, do Deadspin’s posts amount to actual malice?

Now that’s pretty fascinating question as well. This entire situation reads like the hypothetical case set forth in a law school First Amendment exam. Again, for this to be actionable in a court of law it would have to be false. And you’d have to prove either that Deadspin knew it was false, virtually impossible to do, or that Deadspin showed reckless disregard about whether these stories were true or false. Again, this is an awfully hard standard to meet in a court of law.

So my professional opinion as a lawyer is that these posts wouldn’t allow someone at ESPN to recover for them. It doesn’t mean that a lawsuit won’t be filed, but it means I think Deadspin is protected.


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