So it turns out that the political action committee Conservatives for Guilford County and four of its principals are suing local blogger Jeff Martin, who blogged under the pseudonym Fecund Stench, for defamation. If I liked popcorn, I’d be buying some.
First, the obligatory disclosures: Jeff and I have been friends online and in real life for years. (Less relevantly, his wife and my ex-wife used to work together at the old TriadStyle magazine, which is, indirectly, how he and I first met in real life.)
Second, for those of y’all not from ‘Round Here: C4GC is a local Tea Party outfit, with all the ideological baggage that that term implies. And Jeff Martin, a more traditional Republican, despises it and everyone associated with it. And Jeff plays hardball. To extend the baseball metaphor, I don’t think I’ve ever seen him intentionally hit a batter, but when a batter crowds the plate, Jeff will throw a 99 mph brushback pitch and not lose a second’s sleep. I like him, but I don’t agree with every last thing he says. And fellow Greensboro blogger Ed Cone, who is more dispassionate about Jeff, says this about him: “At his best, Fecund Stench is Guilford County’s own, digital H.L. Mencken (and like Mencken, his use of racial and religious stereotypes can be an issue). At his not-best, duck.” I think that’s fair.
Now, the complaint, which you can read for yourself. (Jeff has 30 days to respond.)
Now, the obligatory disclaimer: I Am Not A Lawyer, and I don’t play one on the Internet. However, I did publish a fair bit of potential lawsuit bait about some incompetent and/or bad people during my 25 years in print journalism, consulting with lawyers many times in so doing, without ever being sued at all, let alone successfully. And my just-completed master’s program included a media-law course just a year ago. (Much of what appears below is adapted from the text for that course, The Law of Public Communication, by Kent R. Middleton and William E. Lee, published in 2013 by Pearson.) So I’m in a position to do a little analysis without attempting to say who will win.
Now, the caution: Jeff has taken the Fecund Stench blog down, apparently as a result of the lawsuit, so the posts quoted in the complaint are absent any context. That caution is important no matter which side of this case you’re inclined to come down on at the moment.
In plain English, the first question is: Are the plaintiffs — that is, C4GC and the four named individuals — public figures? The answer determines what they have to prove in order to win the suit. The answer is that they almost certainly are. They are not public officials — the least ambiguous type of public figure. But they are public figures. The PAC has attempted to play a role in local elections. Jodi Riddleberger is an occasional op-ed columnist for the News & Record. And so on.
I’ll explain why the fact that they are public figures is important in a minute. First, you need to know that to win a libel suit, plaintiffs must prove, at a minimum, all of the following six things:
- defamation: that what was published damaged plaintiffs’ standing in the community or professional reputation via attack on plaintiffs’ character or professional abilities, and/or that it causes people to avoid the person defamed. (Fun fact: The law does, indeed, recognize the possibility that someone’s reputation might already be so bad that they can’t be damaged any further by being libeled.)
- identification: that what was published specifically identifies each plaintiff (it need not do so by name if the description clearly identifies a particular individual).
- publication: defendant made the allegedly defamatory statements where at least one other person besides defendants could see them. Blogging on the World Wide Web meets this definition.
- fault: defendant published the information either knowing it was false or with reckless disregard for whether it was true or false.
- falsity: the information must be provably false, and the burden of that proof falls on plaintiffs.
- injury: plaintiffs must prove some form of actual damage, financial or reputational.
Remember, the plaintiffs must prove all six to have a chance of winning.
Now, the public-figure status of the plaintiffs matters because of the level of fault they must prove as public figures, noted in bold above. In North Carolina, private figures under the law need not prove quite as much — merely that the allegedly libelous material was published negligently. But, as I noted, I’m pretty sure that C4GC and the named individual plaintiffs qualify as public figures because of how they have injected themselves into public debate on issues of public import, e.g., elections. If the court finds that they are in fact public figures, they’ll have to prove that Jeff knowingly or recklessly published false and defamatory statements about them.
Here’s the thing, though: Defendants in libel cases have several defenses available to them under the law, and if the defendant employs any of those defenses, the burden of proof is on the plaintiffs not only to prove the six things listed above but also to show that those defenses are inadequate or don’t apply.
Some of those defenses that might relate to this case are:
- statute of limitations: Even if a statement is libelous, a suit must be filed within a certain period of time after its publication to be allowed to proceed. If a would-be plaintiff waits too long — typically a year — to sue, the plaintiff is out of luck. Some of the statements at issue date to 2011.
- truth: If the plaintiff alleges that the defendant has published something false and the defendant can prove that the statement is true, the plaintiff is out of luck.
- neutral reportage: If Candidate A says something potentially libelous about Candidate B, Newspaper C may be able to report what Candidate A said without committing libel, even if it knew or suspected that Candidate A’s statement was false and defamatory, as long as it reports what Candidate A says in fair and disinterested fashion. Candidate B might, just maybe, have a libel case against Candidate A, but not against Newspaper C.
- First Amendment opinion defense: Statements can’t be libelous if they are opinions based on verifiable fact or if they are opinions whose truth can be neither proven nor disproven.
- exaggerations and figurative terms generally are not libelous.
Obviously, we can’t even begin to know until the discovery phase of the suit is complete whether plaintiffs can prove the six things they need to prove. Publication is a slam dunk, and for the sake of argument, let’s give all five plaintiffs the benefit of the doubt on identification. That still leaves falsity, defamation, injury, and fault, specifically that the plaintiffs must prove that Martin published false and defamatory material either knowing it was false or with reckless disregard for whether it was true or false.
Which raises another issue. Is it provably false, for example, that plaintiff Brett Riddleberger “suffers from a medical condition known as Erectile Narcolepsy, by which loss of blood to the brain when aroused causes him to lose consciousness.” To this layman, a better question would be: Who, among those older than 9, would believe this to be true in the first place? This is arguably an example of the kind of exaggeration that cannot be considered libel.
Anything is possible in a lawsuit, particularly if a case actually gets tried in front of a jury. But few libel cases get that far. The farthest most ever get is that after discovery (in which each side is obliged to provide certain evidence to the other), both sides move for summary judgment — they ask the judge to rule for their side without even letting the case go to trial — and the judge grants it to one side or the other after determining that there are no real issues of fact for a jury to determine.
But even more likely than that is that the two sides settle or one side, usually plaintiffs, realizes that it has no case and cuts its losses. A letter from Jeff’s counsel, Ron Coleman, strongly suggests to plaintiff’s attorney that that is where this case should be headed:
Although we have only passing familiarity with the litigation pending in Guilford County at this point, we see no reason to doubt that a cooperative resolution of this matter is the likely outcome. In light of your own experience and considering your level of practice, we would expect that you see it the same way. If so, you will probably agree as well that we should make every effort to skip the stupid steps and get to that point now.
Rationally, I agree that that’s exactly where this case should be headed. But I’ll be honest: Part of me wants to see what plaintiffs have to say, under oath during depositions in the discovery phase of the suit, about the businesses of the Adkinses and the financial backing of C4GC. As a longtime Republican living in N.C.’s 6th Congressional District, I must vote in a runoff between the top two finishers in the May 6 GOP primary, one of whom, Mark Walker, is backed by C4GC. If one of the candidates is backed by money from strip clubs, I’d certainly find that relevant. It might or might not affect my ballot — past performance, more than anything else, generally dictates my voting decisions — but it might very well affect those of other Republican voters in the 6th District. It’s certainly germane. And, frankly, given the Christofascist nature of some of the candidates previously supported by C4GC, the possibility of exposing great hypocrisy is attractive to me.
In short, part of me wants to see plaintiffs spanked so hard their appendixes come flying out of their mouths.
But this isn’t about me. It’s about Jeff and his constitutional right to publish factual information, criticism, and even parody, and about the same rights for other bloggers, perhaps, one day, including me. Assuming everything he has published is either true fact, protected opinion or parody, not only does he need for this suit to go away, America needs for the plaintiffs to be driven away with their tails between their legs and lots of bright red bruises on their asses so that robust political commentary and criticism can continue unabated.