from the not-how-it-works,-jackass dept
No matter what you might think of the various legal fights involving Stormy Daniels, her lawyer, Michael Avenatti, is making quite a name for himself over the past couple of months — partly for his legal strategy, partly for breaking news about Michael Cohen and Donald Trump, and partly for constantly appearing on TV at what appears to be every possible opportunity. Even if you happen to support his dogged focus on calling out Cohen and Trump, it is worth noting that Avenatti seems to fall into the camp of a few other lawyers in filing and threatening completely bogus defamation threats trying to silence people. Last month, there was some news when Daniels, represented by Avenatti, sued Donald Trump for defamation over a tweet of Trump’s.
I could probably write 90,000 words just to give you a basic background of how we got here, but assuming you follow at least some of the news around this, the short version is that Daniels claimed on 60 Minutes that a few years back she was threatened in a parking lot by a man who told her to leave Trump alone. There was some dispute about the veracity of this claim, and Daniels eventually had a sketch artist draw what the guy looked like, leading Trump to then tweet: “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!” Daniels sued over this tweet, calling it defamatory.
As First Amendment lawyer Ken “Popehat” White notes, this is a “very weak” case, and there are a whole bunch of reasons why Trump is likely to get it dismissed — including that previous courts have ruled that Trump’s tweets can’t be taken literally, and a fairly strong argument that Trump’s tweets are opinions based on disclosed facts, rather than false factual statements themselves (not to mention the high bar needed to show that Trump’s tweets involved knowledge of falsity or reckless disregard for the truth — while Trump may, in general, have a reckless disregard for the truth, that’s not going to meet the legal standard for a defamation case). First Amendment lawyer Marc Randazza went, shall we say, a bit further in suggesting that Avenatti’s lawsuit was a bad idea. You can read that entire link on why the lawsuit may backfire on Daniels/Avenatti, or it can be summed up in the following tweet from Randazza:
If you can’t read that, it’s Randazza responding to Avenatti’s tweet about the filing of the lawsuit with the following (*cough*) professional assessment:
You must be mentally impaired to have filed this stupid shit. I hope your malpractice insurance is paid up, Trump will be able to invoke the Texas anti-slap law against your client (last I checked she was a Texas resident). See Adelson v. Harris; Tobinick v. Novella.
Anyway, whatever happens with that case, it does not seem to have resulted in Avenatti becoming any more clued in on not abusing defamation law. Earlier this week he sent an angry defamation threat email to reporter Peter Hasson from the Daily Caller:
— Peter J. Hasson (@peterjhasson) May 14, 2018
If you can’t read that, it says:
Off the Record.
Let me be clear. If you and your colleagues do not stop with the hit pieces that are full of lies and defamatory statements, I will have no choice but to sue each of you and your publication for defamation. During that process, we will expose your publication for what it truly is. We will also recover significant damages against each of you that participated personally. So if I were you, I would tell Mr. Trump to find someone else to fabricate things about me.
If you think I’m kidding, you really don’t know anything about me. This is the last warning.
All rights are expressly reserved.
So, first off, that’s not how “Off the Record” works. You don’t get to just chant it like an incantation and reporters have to abide by it. It is a negotiation, where you first must ask a reporter if they’ll accept your statement off the record, and then it’s established that it is (and, even then, some journalists will still choose to burn sources who give off the record statements, though at a potential cost of no longer getting quotes in the future). Even more bizarre is that, even after this, Avenatti appears to believe that him merely stating “off the record” carries some sort of magical requirements which don’t actually exist:
?I sent an email off the record. It should remain off the record. It speaks for itself,? Avenatti told TheWrap on Monday.
Yeah, it speaks for itself that a press-hungry lawyer doesn’t understand how “Off the Record” actually works.
But, more importantly, threatening journalists for reporting on you is… bad. I’m no fan of the Daily Caller myself, and think it’s a hack publication that publishes misleading, fear mongering, junk, often to prop up our dunderhead of a President, but that doesn’t mean it’s defamatory.
The fact that Avenatti cites no actual false statement of fact, and is just screaming about generalities, tends to be the sign of someone looking to censor the press, rather than someone who has a legitimate defamation claim. Also, given that Avenatti’s silly threat came just after the Daily Caller published an article about him, the email also serves as something of a Streisand Effect calling more attention to what the Daily Caller had to say.
Even worse, Avenatti went on TV (natch) to defend his bogus defamation threat, because (he claims) not all journalists are ethical:
?All journalists are not ethical, just because they?re a journalist. There?s good journalists and there?s bad journalists. There?s ethical journalists and unethical journalists,? said Avenatti on the Monday evening show.
?If we encounter journalists that don?t get their facts straight by design, don?t follow the basic rules of journalism, purposely skew stories to fit their own political dialogue of what they want the message to be, we?re going to continue to call them out on that. And there?s nothing wrong with that.?
Well, first, it’s true that not all journalists are ethical. And it’s true that there’s “nothing wrong” with “calling out” journalists who you feel don’t follow the basic rules of journalism. But “calling out” is not the same as “threatening with entirely bogus defamation lawsuits.” And there’s a pretty big difference there.
We’ve covered this ground for many years. People get annoyed or upset about lots of things said about them — and sometimes that stuff appears in publications with large audiences (or small audiences). Threatening to sue people for defamation just because they said something you don’t like is bad. It’s abusive and censorial and bullying. If anything deserves being “called out” it’s lawyers abusing defamation law or threats under defamation law to seek to intimidate reporters, no matter how ethical or unethical those reporters might be. If Avenatti believes that the Daily Caller’s reporting on him is bogus, then respond to it and explain why it’s bogus. Responding with a bullshit censorial threat, without any explanation of why the site’s reporting is in error, suggests anger at being criticized, rather than any sort of legitimate complaint.