Sarah Palin justifiably is outraged at the latest Joe McGinniss outrage.

In addition to knowing that McGinniss and Random House published lies about her, Palin now has evidence not usually available to libel plaintiffs, in the form of an e-mail obtained by Andrew Breitbart in which McGinniss admits to not having the evidence to back up much of the “gossip” which ended up in the book.

Palin’s attorney has written to Random House notifying it of the evidence and the knowingly false nature of the allegations.  While the letter does not itself assert that a lawsuit will follow, the letter does put Random House on notice of a possible claim and demands that all electronic evidence be preserved.

Many are speculating that a lawsuit is the way for Palin to go. I disagree.

I advocated Palin litigating on a strategic level in the case where Gawker obtained and leaked excerpts from Palin’s book prior to publication.  The litigation made strategic sense in that case because the only legal issue would have been the rights of Palin and the publisher to the literary work, but the lawsuit would have given Palin an opportunity to explore the anti-Palin smear machine, epitomized by Gawker, and to uncover and expose the connections. There would have been almost no downside to Palin.  Her publisher decided to settle, and Palin understandably went along.

The McGinniss/Random House situation presents a very different legal and strategic playing field.

Palin is a public figure and has a high burden of proving actual malice.  Given McGinniss and the e-mail, it’s a good start, and if McGinniss is prone to e-mailing, things could get interesting.  And certainly, putting it to McGinniss and the other anti-Palin smear merchants will be emotionally satisfying; McGinniss’ e-mails with various “sources” should prove interesting.

But putting Random House on notice puts other publishers on notice that if they hire someone like McGinniss they will be challenged, which has achieved much of the deterrent effect already.

There also are other aspects which would be negative for Palin.  Her family, friends, business associates, political consultants and just about everyone who knew her would be subjected to subpoenas and depositions.  While she may not have anything to hide, the slanderous creepy stalking of McGinniss will seem like a picnic compared to the litigation of a libel suit by a public figure.

But even more important, the litigation would take place when Palin has better things to do.  Like running for President, or if not, working to elect Republicans.  If McGinniss is able to distract Palin from her goals, McGinniss will have accomplished far more than the smears in his book.

In many ways Palin has won the battle of the haters.  The best revenge will not be a libel lawsuit, but removing from office the worst President and Democratic Senate since the Great Depression.

Stay focused.

 
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