Thursday, November 18, 2004

Strategic libel litigation 

The NY Post reports that John Kerry is preparing to sue John O'Neill, who is the author of Unfit for Command, the leading Swiftie progenitor, and Kerry's lifelong enemy. While public figure plaintiffs have a very difficult time bringing these suits in the United States -- they have to prove an actual intent to make a false statement -- this case might be a good way to put the Swifty allegations to bed so that they cannot be resurrected in 2008. Even if Kerry cannot prove his case to the high standard of New York Times v. Sullivan, the discovery required to prove New York Times "actual malice" might uncover all sorts of nasty communications -- emails and such -- among O'Neill and his fellow travellers. If this evidence exposed O'Neill as a dark and evil guy it would destroy whatever credibility he has, and he will have a very hard time getting leverage on his story the next time around.

Of course, if by some chance Kerry were to prove both false or misleading statements and actual malice, he will have destroyed O'Neill and motivated the resentful Democratic base all at once. The downside risk that he might lose ("truth" being a defense to the tort of libel) is probably not a downside risk, because if he doesn't deal with O'Neill the guy is going to find a way to get him again next time.

And, besides, there can be no doubt that John Kerry hates the guy's guts. Short of pistols at noon (to which O'Neill might actually agree), a litigator like Kerry probably thinks that bringing a lawsuit will bring him some peace.

The TigerHawk suggestion: John Edwards should represent him!


By Anonymous Anonymous, at Thu Nov 18, 01:32:00 PM:

This could be a very interesting case. If O'Neill were to prove that Kerry is a liar and that the recollections of his SwiftVets group are legitimate and negative on Kerry, and finally get the documents regarding Kerry's service (which Kerry has refused to release) released, it could also ruin Kerry. I'd very much like to know whether Kerry really did doctor up his citations, and have have continually refreshed by higher ranking officials, in order to cleanse his "heroic" service and improve his PT-109-like hero stature.

Not being a lawyer, and not having read Unfit for Command, I would think this case amounts to no more than a threat of expensive legal action (which Kerry can certainly afford, but O'Neill may be able to).

What I think is clear is that 527s need to be dealt with, since we can only assume that we will be hammered with negative campaigning evermore.  

By Anonymous Anonymous, at Thu Nov 18, 02:52:00 PM:

I would be shocked if Kerry follows through on this. Remember, Kerry refused to do a full release of his military records. In this case, we would certainly wind up having to explain something other than an honorable discharge that may have clouded his record until the 1978 "cleanup" honorable discharge he received during the Carter Administration. He would also have all of his Paris Peace talks meetings with the enemy dredged up again. His lie about Chrismas in Cambodia would be cited again.

Plus, O'Neill has a reputation as a dogged Texas lawyer. I think messing with John O'Neill is about the last thing Kerry should consider, unless he is so arrogant and angry that he can't see the risks.  

By Anonymous Anonymous, at Thu Nov 18, 05:28:00 PM:

I doubt that John Kerry will sue. Sure, it is possible that the discovery process may unearth something useful to his case, but he knows that discovery is a two-way street. I have a feeling Kerry will not want to go there. In addition, addition, there is always the possibility of a counterclaim to consider.

Kerry, being a lawyer, knows that the warm glow one feels upon filing a lawsuit for "satisfaction," quickly fades when the discovery and motion practice starts. He knows that the real purpose of a civil lawsuit is permit the winning party to chase the losing party's assets.

John Kerry doesn't need the money.

Parkway Rest Stop

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