Can A Public Person Be Libeled?

In the United States, I would generally say No. With respect to defamation, under American law, it is essentially open season on public figures, especially politicians. But Joe McGinniss may have provided us with the acid test, in the form of an email he wrote to an anti-Palin activist in Alaska in January of this year.

We wrote here about the absurd and even contradictory claims about Sarah Palin that are circulating in the news as a result of McGinniss’s about-to-be-published book. But making an absurd allegation isn’t enough to libel a public person; you have to say something that you know to be false, or subjectively believe is likely false. Since authors rarely confess, that standard has proved more or less impossible to meet in practice.

What is intriguing about McGinniss’s email, which has fallen into the hands of Big Government, is that McGinniss bluntly admits that there is no evidence to support the lurid rumors about Sarah Palin and her family, some of which he passes on in his book. The emphasis is mine:

Legal review of my manuscript is underway and here’s my problem: no one has ever offered documentation of any of the lurid stories about the Palins. Shailey Tripp is the latest example. …

[E]ven you write frequently that you know things you can’t yet post, but that soon “all will be revealed.” This has been going on since I first became aware of your blog, but as far as I know you haven’t substantiated a single claim or provided verification for a single rumor that you’ve posted about Sarah’s personal life, or the personal lives of any Palin family members. Thus, she gets to denounce what she calls “lies.”

Neither from you, the Enquirer, AlaskaWTF, palingates.com or anyone else, have I seen a credible, identified source backing any of the salacious stories about the Palin family.

Thus–as Random House lawyers are already pointing out to me–nothing I can cite other than my own reporting rises above the level of tawdry gossip. …

No one has ever provided factual evidence that:

a) Todd had sex with a hooker, or with anyone else outside his marriage.
b) Sarah had an affair with Brad Hanson, or anyone else.
c) Track was a druggie who enlisted in the army to avoid a jail term. Or that he vandalized Wasilla school buses.
d) Willow was involved in the vandalism of the empty house in Meadow Lakes. Or that Sarah rushed back from Hawaii to put the lid on that.
e) Trig is not Sarah’s natural born child.
f) Bristol was promiscuous as a high schooler and drank and used drugs, or became pregnant again after Tripp’s birth.

For any or all of those who’ve told you they’ll speak out, but not yet, now is the time. My book represents the last best chance to put the truth about Sarah in front of the American people in a documented, verifiable way. But I need facts that I can rely on. I didn’t live this long and work this hard over so many decades to wind up as AlaskaWTF between hard covers.

Despite those admissions, McGinniss’s book apparently consists in large part of passing along the very rumors which he admits to be baseless. Could McGinniss possibly have done the unthinkable, i.e., expose himself to a defamation claim by a public figure? Without reading the book one can’t say for sure, but it is highly unlikely. I assume that not just McGinniss but Random House’s editors and lawyers couched his innuendoes in careful terms, stopping just short of factual assertions that could expose McGinniss to liability (assuming that Palin were interested in bringing such a suit, which would no doubt be a poor decision in any event).

But, to what a tawdry venture McGinniss confesses! He acknowledges that because of his own personal dislike of Sarah Palin, he is desperate to find support for “salacious stories” about her family; he admits further that he has struck out, and there is no evidence to support any of them. But did that deter either him or Random House? No! He wrote the book anyway, and they published it.

Here is an idea: why don’t you go to Random House and tell them you have an idea for a book. You have heard a lot of lurid rumors about Barack, Michelle, Sasha and Malia Obama; you hunted for evidence to support those rumors, but couldn’t find any. But you intend to write a book about the rumors anyway, and you would like Random House to publish it. What kind of reception do you think you would get?

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