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Sue, Sarah, Sue? No.

Sue, Sarah, Sue? No.

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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Her stalker has already taken a hit (besides being 200 or so on Amazon’s list) as the media (yes the pds media) has decided even McGinnis went a bridge too far and have canceled or refused further interviews of him and his hit piece.

I’d guess that McGinnis and his editor are persona non grata around the offices at Random Office.

That’s not a bad effect for a letter.

How did Breitbart get the McGinnis email? How does Random House know it was not from someone inside the operation who was fed up with this smear and who has even more damaging material?

The book is not doing well and the media seems to be treating Joe with the disdain he merited so I would not be surprised to see Random House apologize and withdraw the book os issue retractions without litigation.

Agree. The notice to preserve should have a pretty significant in terroram effect for not.

The more interesting idea is for someone else, not currently a public figure, named and defamed in the book, to sue, taking advantage of the ability to discover McGinnis’ and Random House’s e-mail trove, without directly involving the Palins.

Don’t you think this will be settled out of court? I can’t see the publisher wanting this to go any more public than it already has, especially for McGinniss. That’s what happened years ago when McGinniss was sued for plagiarism.

Strongly disagree. There’s no distraction for Palin. This can and will be handled by her attorneys, who have an excellent case for defamation with documentary evidence in hand (and more probably coming). If RH goes to court they will get reamed by any impartial jury. Settlement for millions means they will help finance her primary campaign.

I agree that pursuing legal action against Random House is waste of time however “putting Random House on notice puts other publishers on notice that if they hire someone like McGinniss they will be challenged” is about as reality-based as Helping Barack Obama premium cable channel not renewing Hollywood Bill Maher’s hatefest show.

The most effective way to defeat the slanderers is bankruptcy-if we do not buy their slander then they won’t have the money to slime.

Who is willing to sacrifice their mere cheezy-sleazy cheap entertainment for freedom?

If she settles, she should require that they move the book to the Fiction aisle and every copy should have a disclaimer stating that the book is nothing but falsehood and rumor. McGinnis, on the other hand, should never be able to find another publisher for his trash. Too bad he can’t be arrested for stalking. Evil little …

I disagree. I think she SHOULD sue…for $1. Just $1. It makes the point with class and dignity and will shoot down all the “she just wants the money” detractors. And as others have pointed out, her attorneys will handle it.

    Rosalie in reply to allyHM. | September 27, 2011 at 5:59 pm

    It seems to me that she’s going to need a couple of bucks to pay her lawyers. I doubt if they’re going to do it pro bono.

Gov. Palin has said many times, including in her resignation speech ( ” I will support others who seek to serve, in or out of office, for the right reasons, and I don’t care what party they’re in or no party at all. Inside Alaska – or Outside Alaska.

But I won’t do it from the Governor’s desk. I’ve never believed that I, nor anyone else, needs a title to do this – to make a difference… to help people.”)

This is what makes her dangerous to the political establishment.

I think this is the key to the demand letter…her attorney just issued.

“Random House is at the top of the food chain and published a book based upon acknowledged unsubstantiated gossip,” the source said. “The revealing email is key as evidence of this defamatory approach to politics through proxies.”…”

I think Gov. Palin was well aware of the sources that would be used in Joe McGinniss’s anti-Palin book well before the Gawker printing of the “leaks” of “America by Heart” in late 2010.

I think she has kept her eye on the ball. As the presidential process moves forward, exposure on the “defamatory approach to politics through proxies.”” will have a great impact. More people will understand and be paying attention.

Gov. Palin will continue to have a significant platform to operate as a significant voice in the “marketplace of ideas” and encouragement of the individual.

I have always thought she would run. I wanted her too. Today is the first day, I think maybe not. If she does, she has my vote, based on her record and courage.

It is an interesting dilemma. In many ways, similar to the question of how to respond to Mike Tyson/ESPN/Matt Taibbi/Imus and the other animus directed at her (and all conservatives). Leave it alone? Because she is supposed to be tough and just take it. Or respond? To demonstrate clearly the untruths. Because not denying can be said to be an admission that they’re true.

I’m no fan of lawsuits in general, so mixed feelings on this one – justice would be the perps getting beat to a bloody pulp. That way you could be sure McGinnnis would not ever practice his creepy stalkerism/terrorism on another victim.

The bigger message is – what is to be done to cure this sickness of attacking conservatives in general and conservative women especially viciously. Because it is widespread in the news media. This is just one provable example.

“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.”


    Rosalie in reply to Rose. | September 27, 2011 at 6:03 pm

    Everyone has a breaking point and maybe she’s reached her. This does not only involve her but other family members and friends, or at least one friend.

I understand the potential dilution of focus involved should a lawsuit go forward, but many of these cases are settled out of court.

The difficulty for Random House is the inability to invoke attorney-client privilege. Should this move to discovery, there would likely be some very controversial information for Random House. Do they really want to expose themselves like that?

It would appear that the sewer pipe starts with a select cadre of Alaskan bloggers who have some very unseemly backgrounds. Does Random House want to lower what ethical standards they have to the level of unhinged Alaskan bloggers?

The biggest benefit of this threat to sue is putting a chill in the media snipe and gossip circuit as she wins the nomination and moves into the White House.

McGinniss has some background in being sued for defamation. For example, he settled in an extremely bizarre lawsuit for $325,000 back in 1987. I question whether any publisher would suppose him going forward.

I am tending to split the difference. Sue no. Out of court settlement, yes. The trick would be what is in the settlement. Keep in mind that the big publishing houses are on shaky financial grounds due to the explosion of ebooks and downward pricing structures. So if Palin really wants to `win` her lawyers should ask —

* Random shall not publish or consider any book about her not of her pen.
* Random shall immediately withdraw all books from circulation. Including buying back the ones already purchased where possible.
* Random shall hand over all correspondence between Random staff and McGuiness.
* Random shall pay the sum equivalent to McGuiness’s advance to a charity of her choosing. That shall be paid annually for 5 years.
* Pay all legal costs.

Suppresson? Hardly. You have to hit them where it hurts.

I understand the very high hill she would have to climb to win a libel lawsuit.

However, her brother is not a public figure and has apparently also been defamed in the book.

To all of the Lawyers here, and ESPECIALLY our esteemed host, what about her brother suing? Chances? Implications? Etc?



“It would appear that the sewer pipe starts with a select cadre of Alaskan bloggers who have some very unseemly backgrounds. Does Random House want to lower what ethical standards they have to the level of unhinged Alaskan bloggers?”

Sorry to say, publishers have no ethics. They cheat, they steal, they lie. Ask any writer.

David R. Graham | September 27, 2011 at 1:09 pm

I am sure your legal cost/benefit analysis is accurate and resolves where it should, namely, benefit for Sarah Palin and her family. I am wondering if there is another species of cost/benefit analysis that trumps the legal one. I do not know whether there is or is not. It’s just a thought. The goal, of course, is constant: benefit the Palins, the country and the cause of truth. Which is the truly proper species of cost/benefit analysis for this specific situation? I do not know. I am not certain the legal one, alone, is. If another is to trump, I do not know what it is.

I recommend that as part of the Random House settlement with Gov. Palin and family members (they are slimed in the book too).

Add: Random House will set up a website called “AttackWatch” for monitoring attacks on Gov. Palin.

I’m sure Prof. Jacobson can explain this far better than I, but you don’t get a “settlement” without a suit. Sarah’s attorneys would at least have to file (or get awfully dang close to it!) Why would any business pay any kind of damage if there was no downside? The treat of a suit may get some businesses to come to the table, but in this case what incentive would RH have to settle?

[…] Palin has better things to do: The urge to sue is understandable, says William A. Jacobson at Legal Insurrection, but it’s extremely hard for a public figure to prove actual malice in a case like this. […]

theduchessofkitty | September 27, 2011 at 3:00 pm

“I understand the very high hill she would have to climb to win a libel lawsuit.

However, her brother is not a public figure and has apparently also been defamed in the book.”

I don’t know about her brother, but her FATHER was targeted in the book as well – implying that he’s some sort of a “pedophile-enabler” or something like that.

I’m sure the following has been discussed before in these forums, but that scumbag also published a map to her house. That is an invitation for mayhem. Any loon who buys and/or reads the book will see that map: that is enough to invite the next Jared Laughner to massacre her entire family, at her house, especially after all the hatred heaped upon her and her family by those who accuse her of “fomenting hatred.” That, to me, is absolutely unacceptable. Evil.

Just for that alone, she should sue.

Anyone who wants to go through suing someone for defamation should go to the New York Times webpage and do an advanced search for “Steven Pagones.”

In 1987, Al Sharpton and attorneys C. Vernon Mason & Alton Maddox accused the former NY prosecutor (among other local white law enforcement figures) of kidnapping, beating, and raping Tawana Brawley, smearing her with feces, and leaving her in a garbage bag, all without a shred of evidence. During the investigation into the bizarre alleged assault, the three publicly dared Pagones to sue them for accusing him, saying that he was afraid of facing them in court.

After a grand jury concluded Brawley had pulled a hoax to avoid punishment for being out late, the three refused to back down on their slanderous statements, and Pagones sued them and Brawley. Brawley fled the state, refusing to show in court. For the remaining three defendants’ trial, the courtroom was a circus, with screaming matches, accusations of racism, and jurors being dismissed left and right.

A YEAR LATER, the trial ended with Pagones being awarded a pittance of the multimillions he sought ($345,000). Still, Sharpton refused to pay his share of the award. Fat Alfred was threatened with garnishment of his wages, which he failed to acknowledge existed (he said that the expensive suits he wore were “borrowed”). Eventually, Sharpton’s share was paid by wealthy black businessmen, including former Manhattan borough President Percy Sutton & in/famous attorney Johnnie Cochran. To this day, Sharpton stubbornly refuses to apologize for defaming Pagones. Even though Pagones has been exonerated beyond a reasonable doubt, that doesn’t matter to the unreasonable.

As much as I would love to see McGinniss and the motley crew of losers that dedicates their lives to public urination on Palin take the witness stand under penalty of perjury, I don’t think she should sue absent absolute certainty of victory. Otherwise, it’s not worth it. The burden of proof in such suits is stratospheric, and if you lose, it leaves the impression — among lazy thinkers — that false accusations are true.

    BannedbytheGuardian in reply to L.N. Smithee. | September 27, 2011 at 8:31 pm

    I can see your point but 25 years is a long time. If the case were prosecuted today – maybe a different outcome. Maybe not.

    There is a subterranean narrative developing that the German financiers of RH have had Nazi connections. Heck if they even existed yet alone survived & even prospered in these years it is enough to stain their reputations.

    Now that would make a good book. ‘Obama & his Nazi friends ” .:)

If I was in Sarah’s position, I think I would accept your advice and decline to push this matter into litigation. It will just be a waste of her most valuable asset, her time.

I enjoy reading your legal thoughts on current events involving our litigious culture when you have the opportunity to express them.

I bet the classes you teach are interesting as well as thought provoking and your class time is treated as the precious commodity that it is.

The threat of being sued, like the threat of being hanged, concentrates the mind wonderfully.

Hopefully those at Random House are giving “Stalker Joe” and his “anonymous sources” a closer look.

huskers-for-palin | September 28, 2011 at 12:56 am

It’s not the monetary damages which concerns the publishers, it’s the DISCOVERY PHASE that’s got them in a tizzy.

What McGinniss did was “penny crime” (relatively speaking), but what would cause a BIG stir is if the emails were accessed by the lawyers and all of the dirty little secrets, embarrasing remarks, political connects and inside-the-biz info get out into the public. That along would make them quietly settle.

In situation like this, it’s not the orignal offense that gets you but the backgound info which leads to other, more serious stuff.