Products Liability

Dear Rusty,

I’d like to say a bit more about my feelings about laws. But first, let’s take a minute to welcome my friends’ brand new baby! Baby Burger, may you be beloved, healthy and joyful and live and grow in a world that prizes love, health and joy. I am over the moon here, and look forward to spoiling you for many years to come.

DISCLAIMER STILL NOT A LAWYER THIS IS NOT LAW DON’T TREAT IT LIKE LAW I MADE IT UP FROM MY NON-LAWYER BRAIN I DON’T EVEN HAVE ACADEMIC WESTLAW/LEXIS ACCESS RIGHT NOW.

So, the more I think about a suit against Breitbart himself, the more curious I become about defamation/libel and the less enamored I become of my tortious interference claim. The comment thread here (at time of linking, the 1st three comments) raises some kind of interesting points. In particular I’m intrigued but unconvinced by this by commenter Doug:

Failing to ask “Is that the whole speech?” is like a sportswriter trying to pass off the halftime score as a final. It’s just incredibly basic.

I agree with the conclusion, but I don’t think the metaphor gets us all the way there. If I were Breitbart’s atty, I’d probably offer a counter-proposition like, sometimes journalism requires us to take on good faith the information provided by a trusted source and that creates the possibility of getting burned. I think this is not that situation for a million reasons but if the “incredibly basic” position is compromised a little bit, the double-plus recklessness required for the defamation cluster is pretty compromised.

Now, this is obviously not Deep Throat in the garage, so you’d say well look, can’t you argue that this _is_ such a violation of standards that it’s reckless yada yada. Logically, that makes sense. In this situation, the outcome kind of indicates that someone was acting… you know… recklessly. But the argument against that is well, do we really want courts deciding where the fine line between responsible and irresponsible journalistic reliance on a source is? If you do want that too bad bc no way is it going to make it past the FIRST AMENDMENT.  Almost a shame because I’d looooove to parse the expert testimony such a claim would inevitably involve (I mean a shame for expert testimony dorks like me. Probably correct as a matter of principle).

Now I wonder about malice aforethought. Nominally a higher standard than recklessness but I’m wondering… so the malice has to be toward Sherrod herself, right? It can’t be just, I want to fuck up the NAACP/USDA. Presumably. BUT we have Breitbart saying all over the place “look what I am trying to do is take down the institutional left. No for serious. That’s what I want to do.” I wonder if his stated malice toward the institutional left (of which I think it’s reasonable (if incorrect) to suggest both the NAACP and the Obama administration are part) could somehow lower the bar on proving recklessness toward Sherrod herself?

Oh I was going to say something about impact litgation generally. Some other time.

Your faithful friend,

Violet

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