Defamation of Character Suit?

[ordnance11]

Someone posted this on a web article:

She will win. There are several basic reasons:

1) Unless I miss my guess badly, she had had offers from literally
hundreds of the best lawyers and law firms in the country offering to
take her case pro bono. When juries hear that the plaintiff's lawyer is
pro bono and the defendant's highly paid (as they always do) they are
always biased in favor of the pro bono lawyers. It is simply a case of a
reaction to the public perception that lawyers are sleazy --- but if
they take a case for free then they must really believe in both the
justice of the case and the probity of the plaintiff. This works
whether the pro bono lawyers are suing or defending.

2) There were real damages. Whether justified or not, she was
summarily fired (a request for resignation is considered a constructive
firing) from a long-standing job where she had outstanding performance
evaluations and steady progress based SOLELY on libelous statements.
Real damages have the effect of greatly inflating punitive damages. And
juries are always very wary of awarding punitive damages or indirect
damages where there were no real damages.

3) The Federal government is immune from wrongful dismissal suits
(as it is exempt from OSHA, Minimum Wage, EEO and other workplace
requirements.) You cannot sue the government for "wrongful termination"
since every employee works at the pleasure of the government. Even
union members can be fired first and the unions dealt with later.

4) Breitbart (or Not-So-Bright-Bart) had access to and had seen the
full video and purposefully edited it to add a "laugh track" and to
change the meaning of what was said. This is not covered by free speech
or even by "fair use" doctrines. Free speech never extends to lies.
Adding the laugh track will carry much more weight with a jury than the
editing since it destroys Breitbart's contentions of NAACP racism.

5) Fox News bears some liability because the station either failed
to use its own confirmation policies or aired the video knowing that it
was falsely edited. Either makes Fox liable. But the "cascade" nature
of civil law allows everything disclosed in the Breitbart trial to be
used against Fox in future actions. The most likely outcome is that
Breitbart will lose and Fox's insurance will attempt to settle. I will
say that Glen Beck was probably warned off by Fox lawyers, but by the
time he tried to "rescue" the situation, the video had already been
aired several times on Fox and was on a large number of conservative
blogs.

6) Both Breitbart and Fox have a long history of inaccurate and
knowing lies. Every single one can be aired in court in the
prosecution. You're talking about hundreds of clips of Breitbart's
brand of racist neo-conservatism and a number of extreme racial remarks
and epithets. Hate speech has long been ruled as not protected free
speech. In the case of Fox it would be literally thousands of clips
that could be used. This sort of thing is almost impossible to defend
against since neither Fox nor Breitbart will be able to show clips where
they said nothing. It is one time where proving the occurrence is easy
and proving the negative is impossible.

7) The act of trying to blame the victims of racism for racism
itself is one of the most logically bankrupt legal stands that can be
taken. Courts have ruled over and over that "reverse racism" is a legal
oxymoron. In fact, there is a great deal of case law that considers
blaming the victim as one of the most damning pieces of evidence of
guilt --- most often seen in rape cases where the rapist tries to say
that the victim's screams were negated by the way she dressed, for
example.

If you want to read about the landmark case that will determine the
outcome, it is Reynolds v. Pegler, 223 F.2d
429 (2nd cir. 1955), was a landmark libel decision in which Quentin
Reynolds successfully sued right-wing columnist Westbrook Pegler,
resulting in a record judgement of $175,001.

The case has its origins in a heated dispute between journalist
Quentin Reynolds and conservative Westbrook Pegler. The dispute
centered around Pegler's denouncement of a liberal journalist and
Reynold's defense of him. However, Pegler did not stop at denouncing
the late Broun. Pegler went on to personally attack Reynolds, asserting
that "Reynolds and his girl friend of the moment were nuding along the
public road"; that "as Reynolds was riding to Heywood's grave with
her, he proposed marriage to the widow". Pegler accused Reynolds of
being "one of the great individual profiteers of the war" and claimed
Reynolds had been involved in fraud involving war contracts. Pegler
also accused Reynolds of cowardice, and said he had been exposed by
people who had "peeled him of his mangy hide and nailed it to the barn
door with the yellow streak glaring for the world to see".

In response to the article, Reynolds sued both Pegler and his
publisher, the Hearst Corporation, for libel. The jury awarded Reynolds
$1 in compensatory damages and $175,000 in punitive damages. At the
time, it was the largest libel judgment ever. Among the evidences
submitted by Reynolds were proof of a severe sun allergy (which
prohibited nudism) and statements by such people as Churchill,
Eisenhower, Truman, Marshall, and numerous others who attested to his
was service.

Reynolds v. Pegler inspired the 1963 Broadway play "A Case
of Libel" by Henry Denker,
which was itself later adapted into two TV movies. The case was also
detailed in a 1962 book by Reynold's attorney Louis Nizer entitled "My
Life in Court."

In this case, there were no real damages because the publicity
surrounding Pegler's attack actually improved Reynold's income. So the
jury awarded $1 in real damages. At the time punitive damages were
limited to equal to real damages (or in a few special cases double or
treble) and this was overturned. It was ruled that free speech does not
extend to malicious lies. It was ruled that the freedom of press does
not extend to personal aggravated attacks. It ruled that Hearst
Newspapers (the Fox News of its time) was liable as well for acting as
an outlet for Pegler's trash talk. And it established the concept of
appeals bonds when Pegler threatened the judge. And all of it went all
the way to the Supreme Court and was upheld in every detail.

The link
I wouldn't say open and shut, but if the court precedent he quoted is correct, Breitbart will have a hard time proving that he is innocent. Ditto for Fox. If Fox is smart, they'd better settle it and quick. Breitbart looks like the type that that's prepared to be a martyr, but after this no conservative is going to touch him with a 10 foot pole. Couldn't happen to a nicer guy, eh?
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