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Tuesday, August 14, 2007
Bonds to Sue Schilling and others for Defamation?
A story from KPIX in San Francisco reports that Barry Bonds has retained two local civil rights attorneys "in connection with legal issues arising from the myriad of false statements attributed to him by players, the media and others," which the attorneys suggest "are defamatory and have legal consequences." Good reports here and here; H/T to TortsProf Blog.
According to Steroid Nation, the first target of legal action likely is the Red Sox' Curt Schilling, who has frequently criticized Bonds (and others) for reported steroid use and other misdeeds, most recently on HBO's Costas Now.
Then there are the following, seemingly contradictory statements from Bonds' new lawyers:
"Those who attempt to profit on false and misleading statements are on notice that we will protect Mr. Bonds' rights to the full extent of the law."But Then:
"This is not an effort to sue newspapers or book publishers," but he said, "we will be looking at past and future statements attributed to him (Bonds)."The second disclaimer to one side, this certainly sounds like a shot across the bow of Mark Fainaru-Wada and Lance Williams, authors of Game of Shadows.
In addition, Bonds's attorneys repeatedly refer to concerns about "statements that have been attributed to [Bonds] that are false and go to alleged criminal conduct." I take this as a reference to published and repeated reports that Bonds, in fact, admitted using steroids to several people (notably Kimberly Bell, his former mistress), and that these people testified to Bonds's statements before the grand jury. Game of Shadows is based on grand jury testimony and evidence; it also seems to be the source for many of Schilling's comments.
I previously have argued that we cannot interpret Bonds's failure to sue the Williams and Fainaru-Wada (or anyone else) for defamation as an admission of anything, although this is exactly what Schilling claimed in talking to Costas. But this is too simplistic, because
In order to prevail on a defamation claim, Bonds must do more than prove the statements in the book were false (a substantial burden in itself). Under the First Amendment, a public figure (which Bonds surely is) also must prove (by the elevated standard of "clear and convincing evidence") that the false statements in question were published with actual malice--that is, with knowledge that they were false, or with reckless disregard for whether they were true or false.In other words, even if some of the testimony before the grand jury was false and even if published reports based on that testimony are false, Bonds still cannot prevail. As a public figure, he must show by clear and convincing evidence that the speaker knew or had subjective belief that the statements were false. Given that extremely high standard, the decision not to sue makes sense and should not be taken as an admission of the truth of the statements.
That high legal standard also means that, if his attorneys follow through on these threats, defamation claim is going to fail. This all strikes me as a lot of bluster from Bond's lawyers. And not the first time. Recall that Bonds previously made an ill-conceived and unsuccessful effort to seize profits from the book when it first came out. This all sounds like warnings to Schilling, the press, and (perhaps) witnesses before the various grand juries to watch what they say.
Ultimately, though, I think Barry Bonds is libel-proof, at least with respect to steroid use. Even if it turns out that Bonds is clean, the evidence hinting at use is such that it would be difficult for him to prove that anyone knew their statements were false.