Wednesday, June 17, 2009

Geoff Baker is really, really wrong

Shyster links to this latest gem by the Seattle Times' Geoff Baker, who last week ripped into an until-recently obscure blogger for doing something Baker himself has done in suggesting that maybe there are reasons to believe that Raul Ibanez's amazingly hot start to his age-37 season wasn't 100% natural.

Shyster is actually awfully kind to Baker in this one (and he calls Baker "off his nut"). Baker's piece (most of it) is presented as kind of a Libel Law for DummiesBloggers, and as Shyster notes, everything he says is right. Technically. And maybe in practice he's right, too; after all, even if there's no serious case that you've actually committed libel, just the fact that you might be sued for it (however baselessly) probably ought to be enough to give one pause. Obviously, he's right that in general, it's important to be careful whenever you're talking about something that's going to hurt someone's reputation.

But the claims and insinuations he makes about the law itself are so misleading and silly that I just can't leave it alone. To leave off the points Baker leaves off indicates that he either (a) has an alarmingly poor grasp on defamation law for a professional journalist, or (b) wrote the piece in an attempt to scare amateur bloggers away from their computers. I think it might be some of both.

If you get sued for libel, your defense can be "the truth'' -- that what you wrote is true -- or that, even if what you wrote was false, you did not act with malice. In Canada, where I began my career, the law is much tougher and states that your stuff had better be true, or you're in hot water. It's a bit more lax here in the U.S. with the whole "malice'' thing.
Yeah, "a bit more lax." The basic tone of it is: "be careful, because if you say anything bad about someone and it turns out to be false, you'll get sued, and all they have to show is that little 'malice' thing."

Let me try to get across how crazy a misstatement that is. He might as well have said this: "If the government wants to get you for murder, all they have to prove is that you actually killed somebody. When I grew up in 14th Century England, all they needed was the King's word that you did it. It's a bit more lax here in the U.S. with the whole 'proof' thing." The requirement of "malice" -- and the legal term is actually "actual malice" -- has the practical effect of rendering almost any defamation suit filed by a celebrity like Ibanez utterly frivolous.

With all due respect to Mr. Baker, let me try to give you my own primer on defamation law*:

In the 1960s, the Supreme Court decided New York Times Co. v. Sullivan, which laid out the following standards for a defamation suit where the allegedly defamed subject was a public official or public figure (a legal term we won't get into, but suffice it to say that Ibanez unquestionably qualifies for these purposes): (1) the statement must actually be false and harmful to the subject; and (2) the statement must have been made with actual malice.

Now, "actual malice" is another legal term, and it has nothing to do with the dictionary definition of malice (like simply wishing someone ill). It means that the statement must have been made with either (a) actual knowledge of its falsity or (b) reckless disregard of the truth.

Baker insists (in a later-posted update in response to some comments) that mere speculation or insinuation is enough. And it's not. Not for public figures. If the blogger Baker is so incensed with had said "Raul Ibanez is on steroids," period, and done so in a way that led you to believe he knew what he was talking about, that would be a different matter (assuming it's provably false and the blogger has no particular reason to believe it might be true). Or if Ibanez were not a public figure, the bar would be much lower (tellingly, Baker doesn't use the phrase "public figure" anywhere in his "primer").

But the post in question did involve a public figure and overtly put itself out as pure speculation, pointing to a number of signs that could be taken as support for the idea that Ibanez might be using PEDs. I have a hard time believing that that would qualify as defamation in a free-speech-respectin' country like Canada, but I'm absolutely positive that it would get laughed out of any court in our own country. For Baker to suggest that there are real worries for bloggers in cases like these is either intentionally misleading or shows an alarming level of incompetence in an area that's pretty vital to his own field of alleged expertise.

Of course, you "can be sued" over everything, however baseless. Celebrities love to file defamation suits, almost literally all of them baseless, as a way to rehabilitate their image (Clemens wouldn't sue over it if it were true, right?!) and in the hopes of scaring the defendant into a quick settlement (retraction and apology). You'd win the suit easily, and you'd have a good case for sanctions against the celeb (recoupment of your attorney's fees), but the risk, however slight, is so costly that they can usually bully you out of taking it. So if the fear is that you'd be sued, then yeah, it's a real fear. If the fear is that you're actually running afoul of the law, that's ludicrous. The athlete almost definitely makes more money than you, and uses it to bully you out of your right to free speech. It's sad, but true. So in most practical ways, Baker was right; he was just kind of disingenuous in going about it.

Now, let me be clear: I hate reading, writing, and especially speculating about PED use. You'll never see that here. The post in question was ill-advised and horribly written. But under our Constitution and NYT v. Sullivan, the blogger absolutely had a right to write it. It's very wrong to spread lies and baseless rumors, but to speculate about a public figure using publicly available information is pretty comfortably in the heart of our free speech zone. To suggest otherwise is irresponsible. I get the sense that Baker and a lot of other professional journalists consider amateur bloggers to have invaded their own private realm, and that posts like these are the equivalent of them attempting to brush an annoying gnat off their shoulders. Well...join the current century, guys.


*Obviously, in no way is this legal advice, or any kind of advice at all. The message here isn't "defame away, everybody." Nobody wants to be sued even if they know they'll win, and to tread the line of spreading lies and totally groundless rumors (which CAN be defamation, even to a public figure) is a terrible, terrible idea, not to mention crappy writing. But the blogger in this case did absolutely nothing more than the things Baker and his colleagues do on a regular basis; the idea Baker wants to get across is that you're an amateur and you don't know what you're doing, so you're gonna get in trouble, so you crazy kids just get off my lawn turf already. And I have a big problem with that...but I'll stop ranting now.


  1. Remember when baseball conversations/arguments were about who the best 2B in history was?

  2. Yeah, but now we know it's Joe Morgan.

  3. Crap. And here I thought it was Billy Ripken after all these years. That's why everyone wanted his baseball card when I was a kid, right?!

  4. Awesome. I am so glad I married a lawyer.

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