SHOULD LIBEL LAW BE STRENGTHENED TO PROTECT PLAINTIFFS?

The Fall issue of Brill's Content prominently features a story by senior writer Roger Parloff on the suit brought by the married couple Sidney and Jacqueline Blumenthal against pundit and Internet maverick Matt Drudge. In 1997, Drudge posted on his website, The Drudge Report, an item claiming that Sidney had a history of beating Jacqueline.

At the time, Sidney was about to begin a Clinton Administration position the next day; Jacqueline held a White House Fellowship. Drudge's claim threw the Blumenthals' life into chaos; Sidney was viewed with suspicion and contempt for his supposed criminal behavior abuse, while Jacqueline was repeatedly confronted with others' pity and sympathy for the supposed abuse they thought she had suffered.

The report now appears to have been entirely false; even Drudge issued a less than prominent retraction of it shortly after it appeared. Nevertheless, the Blumenthals ended up having to drop their suit, and to pay Drudge $2,500, apparently because their lawyers failed to timely cancel a scheduled deposition.

Parloff, who is also an attorney, claims the resolution of the suit is an injustice, and an example of "how little redress a libel action now offers a public figure." Indeed, he asserts that "as a practical matter, there really aren't any laws against libel and defamation, at least when the defamed party is a public figure of modest means." The cover of Brill's Content goes even further, claiming Drudge's story is one of "how libel law never works."

The Blumenthal/Drudge case, however, is extremely atypical — as Parloff's own story shows — in part because the attorney's fees situation was unusual, and in part because it was so highly politicized by both sides.

Moreover, while the case was unfortunate, it is hardly a poster child for the failure of libel law. It is true that the Blumenthals never got what they sought — the identity of Drudge's confidential sources — but it was not the purpose of libel law to give it to them. Moreover, while the Blumenthals were never vindicated in court, they have been vindicated in the press, and this restoration of reputation is all the lawsuit should have been geared to achieve in the first place.

Why the Blumenthal/Drudge Case Is Unusual: The Political Context

Parloff reports that the Blumenthals' attorneys worked on a contingency basis — so that the Blumenthals did not have to pay anything but expenses for the suit to go forward. This kind of contingency arrangement is not unusual in a libel case — which, like a personal injury case, is a type of tort action. The arrangement usually puts libel plaintiffs at a huge advantage over individual defendants, who must pay attorneys' steep hourly rates and can end up being bankrupted quickly. Given that reality, it is hard to conclude — as Parloff does — that libel plaintiffs, in general, are exceedingly vulnerable.

The Blumenthal/Drudge case was atypical, because as Parloff chronicles, Drudge was represented for free by a conservative group. It was the Blumenthals whose financial situation suffered — but the damage was predominantly caused not by the libel suit, but by Sidney's being dragged into the impeachment mess, which resulted in legal fees amounting to more than $300,000.

In short, the relative positions of most plaintiffs and defendants were exactly reversed: Drudge paid little to nothing, while the Blumenthals were put in a very difficult position financially. This reversal of fortune alone would distinguish this libel case from virtually any other in which the defendant was an individual. But this is far from the only distinction between the Blumenthal/Drudge suit and a garden variety libel suit.

Most importantly, the case took on a bizarre political character, since the Blumenthals were convinced Republican extremists had planted the rumor on Drudge's site to hurt Sidney and, by extension, the Clinton administration. Indeed, the case became so politically fraught that Parloff's excellent and carefully-researched narrative involves both conservative-turned-liberal David Brock (who was feeding information to Blumenthal) and liberal-turned-conservative David Horowitz (who was feeding lawyers to Drudge).

The resolution of Blumenthal v. Drudge should therefore not cause public figures to worry that they have no libel protection. It should only make them happy that they did not take the Clinton Administration job Blumenthal accepted.

How the Blumenthals Acted Politically, Too

It is also important to note that the Blumenthals ended up where they did financially because they also were fighting aggressively on the political front. Indeed, the major reason they sued, according to Parloff, was "to expose and sue the ultimate perpetrators" — who they believed were partisan Republicans. Only because they had "some idea of where Drudge's story came from," Jacqueline told Parloff, did she and Sidney eventually agree to settle.

This motivation to fight aggressively on the political front also explains why the Blumenthals may have sued, rather than simply writing lengthy, angry denials. Few had more media access than Sidney Blumenthal, who had written for the New Yorker, the New Republic, and the Washington Post. His wife Jacqueline — an articulate White House Fellow, who was also a woman victimized by a false report — certainly could have gotten the press' ear, too. And indeed, they both have done so.

But what the press could not provide, and a lawsuit could, was the subpoena power, and the power to compel testimony — the power, that is, to try to force Drudge to reveal his confidential sources. This power is apparently much of what motivated the Blumenthals, but it shouldn't have.

A libel suit is supposed to be about proving that a published statement was knowingly false, and taking the publisher to task — not about flushing out confidential sources, whose confidentiality enjoys First Amendment protection (at least to a point).

Focusing on Confidential Sources

Going after confidential sources was also the reason the Blumenthals' expenses for the lawsuit mounted. The judge held that the Blumenthals could not force Drudge to reveal his sources until they had conducted wide-ranging depositions to see if they could find the sources out by other means.

Especially given that the Blumenthals themselves claimed to have a good idea of who they thought the sources were, the judge's holding was not unreasonable. However, the Blumenthals balked in the face of what apparently was an additional $30,000 to $50,000 in deposition expenses.

Those expenses, though, were avoidable. It was the Blumenthals' choice to fixate on the confidential source depositions — just as it was their choice to use the lawsuit in part as a vehicle to out Drudge's sources in the first place. Their lawsuit could have gone forward without any of these depositions. Although the identity of the sources was certainly relevant to Drudge's state of mind (some sources are more reliable than others; some are patently unreliable), it was not necessary to the continuation of the suit.

Both Victims and Aggressors

To a certain extent, I am very sympathetic to the Blumenthals. They should never have had to deal with a false, hurtful report, particularly when Sidney was just beginning his White House position. Their having to pay so much money in Starr-related legal fees was deeply unfair, too. But what cannot be forgotten is that while they were victims in these respects, for the lawsuit's purposes, they were aggressors, too.

They asked for $30 million in damages for a report that they had ample opportunity to discredit in the press, and that was rapidly (albeit weakly) retracted by Drudge. They sued Drudge before he had free counsel — and presumably would have been happy to bankrupt him with lawyer's fees, destroy his website, and have his wages garnished forever to pay their verdict.

While Drudge made a serious error that did harm, and did not retract it and apologize for it as strongly as he should have, did it really mean he deserved to lose everything? The Blumenthals clearly thought so.

In a better world, Drudge would have been more cautious in what he reported, and more apologetic when he was wrong. But in the world we live in, he was not. Given that, his mistakes were best addressed in the press — not the courtroom.