WHY OUTGOING CONGRESSMAN GARY CONDIT IS VERY UNWISE TO SUE AUTHOR DOMINICK DUNNE FOR LIBEL

By JULIE HILDEN


julhil@aol.com
----
Tuesday, Dec. 24, 2002

Last Monday, Representative Gary Condit sued author and Vanity Fair columnist Dominick Dunne in federal court in Manhattan. Condit alleges in his complaint that Dunne libeled him in broadcast and newspaper interviews about the Chandra Levy case, as well as at a series of dinner parties with the rich and famous.

Condit is seeking $11 million in compensatory and punitive damages from Dunne. He claims both emotional distress, and damage to his ability to procure future employment.

Condit ought to immediately withdraw his suit - for it is likely to hurt him far more than help him. Even assuming that Condit had nothing at all to do with Levy's murder, his case is still a weak one. And discovery in the case could still prove very embarrassing for him, as well as hurtful to his wife and children. Moreover, even if Condit pursues his case to the bitter end, the damages he receives could be scant, at best.

The Specifics of Condit's Allegations Against Dunne

Among his allegations, Condit says that Dunne implicated him in Levy's murder, when Dunne reported a tip saying that Levy had been kidnapped, and her murdered body then thrown in the ocean.

The tipster, Dunne reported, had also claimed that that Levy's killers were members of a prostitution ring that served certain Arab countries' embassies where Condit, allegedly, had been a frequent guest.

In May, Levy's remains were found in Rock Creek Park - not in the ocean, as the tipster had claimed. Accordingly, Dunne later acknowledged that the tip had obviously been a hoax.

But while Dunne backed down, he did not back down entirely: "I don't think [Condit] killed [Levy]," Dunne said. But, he added, " I think he could have known it was going to happen."

Dunne also suggested on other occasions, as the complaint notes, that he had a "theory" that Condit might have conveyed the message to fellow motorcyclists that he wanted Levy out of his life. (Condit, a biker himself, had attended Hell's Angels rallies in the past.)

Dunne had also speculated, on several occasions, that that when a powerful man like Condit wants to get rid of a woman in his life, those around him get the message and take care of it for him - whether he asks for it or not.

While it is understandable that Condit was aggrieved and angry at these statements, it is doubtful that he will be able to base a successful libel case upon them.

Why Dunne Will Automatically Have An Advantage In the Case

Before looking at the law's requirements, it's worth noting that Condit is likely to have an uphill battle based simply on who he is, and who Dunne is.

Dunne is not only a respected journalist, but the father of a slain actress who went on, despite his grief, to seek justice for other families of murder victims. Obsessed with vindicating victims of violent crime, he is, on the whole, a very sympathetic defendant.

Meanwhile, Condit is hardly a sympathetic plaintiff. He is a disgraced politician who has lost his California Congressional seat - and certainly not solely as the result of Dunne's remarks.

To begin, it is clear that Condit was not entirely candid and open during the Levy investigation. And to a jury, that recalcitrance looks (and is) terrible. As someone close to Levy, Condit should have been ready and willing to provide any and all information immediately, in case it could help save her life or, at least, help her parents learn what happened to her.

Condit also displayed odd behavior during the investigation - disposing of a watch he'd kept in his office in an out-of-town dumpster, and releasing schedules of his whereabouts that later appeared to be inaccurate. Police sources reportedly have said that Condit eventually admitted to them that he had had an affair with Levy, but did not do so at first.

Meanwhile, Condit still refuses to acknowledge what appears to have been a sexual relationship to Levy's parents or the public. Yet at the same time, Condit's own libel lawyer, L. Lin Wood, seems to be suggesting that the former Congressman probably won't be disputing that affair in his suit against Dunne.

Wood says that Dunne broke the law when he "transformed an allegation of sexual misconduct into criminal accusations." Seemingly, then, Condit is not going to take issue with the allegation of sexual misconduct.

Condit's case, it appears from Wood's statements, will instead be based on the contention that he may have been a cad, but was not a culprit. That's a risky strategy: Many jurors still judge cads poorly, especially when there is a twenty-nine year age difference between the "cad" and his paramour.

Will a jury really want to give a perceived predator on a young woman who is now deceased millions to compensate his emotional trauma? In the end, most jurors will probably see Condit's downfall as far more his own fault than Dunne's.

Condit Will Have Trouble Proving A False Statement of Fact

Besides these problems relating to jury sympathy, Condit's case also has a number of more technical legal problems. A libel is defined as a false statement of fact, of and concerning the plaintiff, that tends to lower his reputation in the community, and that causes him damage. Does Condit's case fit the bill? Unlikely.

Certainly Dunne's comments were "of and concerning" Condit, and certainly they tended to lower his reputation. But whether Condit can prove the other elements of libel is far from certain. Falsity, damages, and even the "factual statement" requirement will be hard to prove.

Recall that when Dunne repeated the tipster's statement, he seemed, at most, to insinuate - rather than actually making a "statement" - that Condit might have been actively involved in Levy's murder. And Dunne seems to later have retracted even that insinuation, making clear he did not believe Condit was a murderer, and suggesting only that Condit "could," at most, have been aware of the murder beforehand and done nothing.

The word "could" arguably puts Dunne's comment in the realm of Constitutionally-protected speculation and opinion - which cannot form the basis for a libel case.

Similarly, Dunne often offered "theories" of what might have happened in Condit's case. And some of Dunne's theories arguably placed little, if any, blame on Condit; instead, they suggest that eager underlings helped out their boss by killing a woman who was aggravating him, without having been told to do so. So where, in the end, is the "false statement of fact" that libel law requires?

And what about the requirement of a false statement? Can Condit really prove that he did not kill Levy, without proving who did? Granted, Condit was never named by the police as a suspect, but there were reasonable grounds to think he should be one; the police questioned him repeatedly in connection with the crime, and they searched his apartment.

Moreover, it's not enough for Condit to prove that he is very unlikely to have been the one who killed Levy, or to have known about her death beforehand: He must prove that, in fact, he did not kill her or know about her death beforehand.

But it's extremely hard to prove a negative. And as many later-exculpated prisoners can attest, just because you're innocent, doesn't mean you can prove it.

Finally, Dunne may also be helped by the fact that he was commenting on an ongoing investigation. There is a strong public interest in - and in some jurisdictions, special protection for - opinions and even factual commentary on ongoing investigations and litigations. And obviously, free speech about what police and prosecutors are, and should be, doing is essential to our society.

Condit Will Have Trouble Proving Damages From Dunne's Statements

In addition, the fact that Dunne's initial statement was far from a direct murder accusation, and his subsequent statement muddied the waters even further, will hurt Condit's case for damages. After all, others in the media went farther than Dunne by strongly suggesting Condit actually did, in fact, kill Levy.

Given that atmosphere, can Condit's downfall really be attributed primarily to these equivocal and speculative statements by Dunne, as opposed to other, stronger accusations that were also in the mix? Even a verdict against the media as a whole would lead to only a comparatively small damage award against Dunne in particular.

Condit Will Also Have Trouble Proving Falsity and Actual Malice

Moreover, when a plaintiff is, like Condit, a public figure, it is not sufficient for him to only prove the elements of a libel case that I noted above. "Actual malice" is also required. Even if Condit can show a "false statement of fact," and show damages, he still may be in serious trouble with the "actual malice" requirement.

"Actual malice" is defined as a subjective awareness of probable falsity. Importantly, proving Dunne was careless or even reckless in what he said, or that Dunne should have known that what he was saying was probably false, is not enough. Instead, Condit must prove that Dunne said what he said even though in Dunne's own mind, he knew it was probably false.

And can Condit really prove that Dunne, in his own mind, knew he was saying something that was probably false? Dunne offered theories that he seemed to think, and probably did indeed think, were likely to be true. Simply because Dunne's tip turned out to be wrong, does not prove the crucial requirement that he knew at the time it would probably turn out to be wrong.

In contrast, if Condit were a private figure, Dunne could have been in far more trouble; the standard would be lower, and less subjective than "actual malice." As a result, arguments based on Dunne's possible failure to inquire as closely as he should have into the tip, could then be made.

Civil Discovery Could Be An Unmitigated Disaster for Condit

Not only could Condit fail to prevail in his suit against Dunne, but also, from a personal perspective, he could actually lose it spectacularly.

Although Condit's attorney is attempting to shift the focus away from his relationship with Chandra Levy, there is little doubt that discovery will encompass that relationship. And exposure of the details is likely only to hurt Condit and his family more.

Conceivably, even other women's claims - made in The National Enquirer, for instance - of extramarital dalliances with Condit might become relevant. Remember how Monica Lewinsky got dragged into discovery in the Paula Jones case, with historic consequences?

Of course, the claim in the Jones case (sex harassment) was very different, but the principle is the same: It's hard to predict, prior to discovery's beginning, just how far afield it might go.

Libel plaintiffs often are shocked to realize that they have opened themselves up to wide-ranging discovery into their personal lives, but when their personal life is what is at issue, such discovery is fair game. And in this case, even Wood, Condit's attorney, seems implicitly to admit Condit's personal life is at issue: If an allegation of sexual misconduct had been transformed into an allegation of criminal activity, as Wood claims, then isn't the jury entitled to know the truth about the allegation of sexual misconduct to see how Dunne's statements allegedly twisted the truth?

Condit may also have another serious problem in discovery: He may want to take the Fifth Amendment as to questions about, for instance, his whereabouts on the day of Levy's murder. But if he does, it may be hard for him to maintain his case.

It's not fair for a libel plaintiff to refuse to open himself to full discovery on the very issue he himself has raised: Was Condit, or one of his friends and associates, involved in any way, shape or form in Levy's murder, as Dunne may have suggested? And if not, how can we know he wasn't?

Condit should call his lawyer and withdraw his case - ideally, before the first discovery request is served upon him.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99; among clients she aiding in representing was the National Enquirer. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her first novel, Three, will be published in the U.S. in summer 2003 by Plume; in the U.K. by Bantam; and in French translation by Actes Sud.

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