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Thursday, January 03, 2008
Defamation and Clearing Your Name

One constant question in the wake of the Mitchell Report has been whether named players could or would sue Mitchell, MLB, or one of the sources--Kirk Radomski or Brian McNamee--in an effort to "clear their names." Such a lawsuit is a risky proposition. First, even if a player could prove the accusations were false, he still might not win if he cannot establish the requisite state of mind. Second, any defamation lawsuit would inevitably turn into a formal judicial inquiry into whether this player did or did not use steroids, with the player bearing the burden of persuading the jury that he did not use performance-enhancing drugs. Both considerations, I have suggested, likely will deter most players from following that course. In fact, Roger Clemens, the only one thus far to make such noise, quickly backed off.

Absent such a lawsuit, the player's best weapon is public proclamations of innocence. The hope is to win a PR battle in the "court of public opinion," helped by the good-will built up with fans, over somewhat dicey characters such as Radomski or McNamee, without having to formally convince a judge or jury that he never used drugs. But that weapon might lead into the courtroom, as well. Clemens will appear on CBS' "60 Minutes" this Sunday, presumably to proclaim that he never used steroids--and thus that McNamee is a liar. McNamee now says he might sue Clemens for defamation if Clemens calls McNamee a liar in the interview. In suing, McNamee would have to prove the statement that Clemens's assertion that McNamee is a liar is false--because Clemens did use steroids.

The point being that a player only can "clear his name" if the issue is fully presented to a court for a finding of fact.


Isn't there a conditional privilege that Clemens should have in responding to the charges levied against him? Also, isn't a shady character such as McNamee almost defamation proof?

I thought the purpose of the "investigation" by Clemens' attorney was going to be to establish that Mitchell was reckless in his investigation. At least that is what it looked like when the initial comments were made by his attorney that it was very troubling that Mitchell didn't talk to people who would have relevant information as to Clemens and McNamee.

Anonymous Anonymous -- 1/03/2008 5:17 PM  

You're right to say that the Clemens/McNamee conflict is more likely to play out in the court of public opinion than it is in a court of law. Neither of these guys wants to testify under the threat of perjury. I looked at it from the media relations perspective in this blog, if you're interested in another take on the issue:

Blogger Mike -- 1/04/2008 10:43 AM  

So, McNamee claims he will be defamed by Clemens claiming that McNamee didn't break the law by injecting him with illegal steroids? This is bizarre.

Anonymous Anonymous -- 1/04/2008 10:56 AM  

Would McNamee really have standing? Defamation requires the plaintiff to show irreparable harm to his or her image, no? How is being called a 'liar' hurtful to McNamee's image? Does it prevent him from being employed somewhere? Does it cause him shame in his community? That's quite a stretch, imo.

Anonymous Anonymous -- 1/04/2008 12:08 PM  

a happy new year!!!!!!

Anonymous joe -- 1/05/2008 7:22 AM  

I imagine being called a liar is defamation per se--the statements are per se damaging to one's reputation. Now, whether he actually has suffered any harm to his reputation to warrant recovery (which he must do as a public figure and because this is a matter of public concern), is a question of what he will be able to recover, not whether he can bring the suit.

As far as I know (and someone who knows about torts, please correct me) there is no response privilege. Which makes sense. If someone says you did X and you call that person a liar when, in fact, you did X, you should be on some hook for defamation.

Blogger Howard Wasserman -- 1/05/2008 7:12 PM  

Surely there has to be a conditional or qualified privilege to protect your own integrity? Sure, calling McNamee a liar is defamatory, but if Clemens is protecting his integrity I would assume he has some sort of privilege to do that? Granted, Clemens could lose the privilege if he goes well beyond merely calling McNamee a liar, but to respond to the charges leveled against him by saying that is a lie, or he is lying has to be protected.

I also don't see why McNamee has to wait for Clemens say say the words "he is a liar" to file suit. The only implications from Clemens denials is that McNamee is indeed a liar. The statements don't express any other possible connotation. He is directly indicating that McNamee is lying.

Anonymous Anonymous -- 1/05/2008 10:58 PM  

But why should someone have a right to protect one's own integrity by lying? If the statement that McNamee is lying is false, it cannot be protected. I guess you could describe this as a qualified privilege, with the privilege ending once your denials become false.

A statement could be implicitly defamatory. But a statement must be "of and concerning" an identifiable target and reasonably recognizable as defamatory. The implicit nature of a denial makes it harder to prove than a more explicit statement such as "he is a liar." But the denials themselves ("He never injected me with HGH; it was B-12") still should be actionable.

Blogger Howard Wasserman -- 1/05/2008 11:39 PM  

Howard you wrote: "I imagine being called a liar is defamation per se--the statements are per se damaging to one's reputation."

Are you sure? Is there precedent for recovery solely based on the fact someone called the other a liar? I'd love to see the case cites on that.

I just did a quick search on defamation per se and found the following, which is what I expected to find (i.e., that defemation per se has historically been construed quite narrowly):

"Some statements are so defamatory that they are considered defamation per se; and the plaintiff does not have to prove that the statements harmed his reputation. The classic examples of defamation per se are allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease. The historical examples of loathsome diseases are leprosy and venereal diseases. Allegations that a person is afflicted with AIDS may well constitute a modern variation on this form of defamation per se."

Anonymous Anonymous -- 1/06/2008 10:15 PM  

I did not research the point and was not in a place where I could. In Mike's SI piece today, he says that case law is mixed as to whether calling someone a liar can be defamation per se--meaning it could be, depending on the jurisdiction and the context. That sounds about right to me.

Blogger Howard Wasserman -- 1/06/2008 11:37 PM  

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