'A reputation capable of further injury'

 

My rabbit hole for the day has been Dykstra v. St. Martin's, and I'd like for it to be yours too, so let's take the Birder's Direct Route through presidential scandal framing to get there.

Presidential scandal is, of course, a perennial favorite at Fox News  -- under the right conditions. You can draw some inferences about those conditions from the top stories at the homepage (these are the first one I saw today and the current one, which has been up for around three hours). The "bombshell report" is Director Gabbard's latest effort to reengineer Russian election meddling into a heinous Kenyan plot, floated Friday night on Sean Hannity's talk show. (Yes, that'd be the edition of Hannity that President Trump promoted three times on his social media platform on Friday.) The autopen is handy whenever nothing much is going on and you need to run a picture of Joe Biden.

Now, given Fox's usual eagerness to ride at Trump's side whenever he goes after the media, you might be wondering what the Fox reader has heard about his libel suit against the Wall Street Journal, Rupert Murdoch, two Journal reporters and others over the Journal's Epstein birthday card tale -- surely a kinda-sorta pertinent development in presidential scandalhood. The answer seems to be "what naughty birthday card story lawsuit?" At this writing. a Google site search at foxnews.com for the terms /trump libel "wall street journal"/ for July 17-19 yields zero hits. Even the New York Post had managed a story by late Saturday morning:

WASHINGTON — President Trump sued the publisher of The Wall Street Journal for $10 billion over an allegedly “fake” and “defamatory” article that claimed he sent a lewd letter, with the drawn outline of a naked woman, to pedophile Jeffrey Epstein for his 50th birthday.

News Corp, its chair emeritus Rupert Murdoch and chief executive Robert Thomson; Dow Jones, the Journal’s publisher; and the reporters who authored the report were named as defendants in the suit filed Friday in federal court in the Southern District of Florida.

The Post kindly includes a link to the complaint, whose focus seems to be the PG-at-best message attributed to Trump:

To attempt and inextricably link President Trump to Epstein, Defendants Safdar and Palazzolo falsely claim that the salacious language of the letter is contained within a hand-drawn naked woman, which was created with a heavy marker. Worse, Defendants Safdar and Palazzolo falsely represent as fact that President Trump drew the naked woman’s breasts and signed his name “Donald” below her waist, “mimicking pubic hair.”

Now, you too may wish to puzzle over how "hand-drawn with a heavy marker" constitutes libel per se or how -- given the public record -- a statement like "She turned to Epstein’s family and friends. One of them was Donald Trump" constitutes libel per quod. But set those aside for a moment, because Lenny Dykstra* is on deck:

Moreover, the statements tend to harm the reputation of Plaintiff as to lower his professional reputation in the community or deter third persons from associating or dealing with him and, as such, constitute defamation per se.

If you're familiar with Trump's other legal claims -- for example, that CBS's editing of an interview persuaded so many likely voters to back the word salad lady that he had to spend extra money advertising in states he though were safe, just to make up for it -- you could also be wondering: Where's that line of people who were planning to associate with Donald Trump but changed their mind Thursday night after reading that he drew boobs on a card 20-some years ago? Well, that was the sort of issue at stake when Dykstra sued a former Mets teammate, Ron Darling, over his memoir.

Darling had asserted, among other things, that Dykstra was "shouting every imaginable and unimaginable insult and expletive ... foul, racist, hateful, hurtful stuff" at Boston pitcher Oil Can Boyd at the third game of the '86 World Series. Dykstra contended that the account "forever branded [him] a racist" and that it was 'maliciously stated to attack [him] and his abilities as a professional athlete, person, and ability to earn a living going forward.'"

Darling's response, again quoting the decision: "Darling argues that Dykstra is a 'classic libel-proof plaintiff, whose reputation is so bad that he simply cannot be defamed.' Second, Darling argues that 'the [r]eference is substantially true, and any alleged incremental harm would be nominal and non-actionable.'"

The court's conclusion in dismissing the case: 

Given Dykstra’s celebrity and apparent attraction to the spotlight, Dykstra’s remedy lies in telling his own story to the public. ...  As such, this Court sees no legal basis for why it should use its very limited time and resources litigating whether Dykstra engaged in yet another example of bigoted behavior over thirty-years ago in a court of law. There are sports commentators, bloggers and legions of baseball fans to litigate this issue in a public space. This Court, however, has cases involving lost livelihoods, damaged and lost lives, as well as plaintiffs that have suffered very real reputational injuries. Accordingly, Darling and Publisher Defendants’ motions to dismiss the first cause of action for defamation, pursuant to the libel-proof plaintiff doctrine, are granted.

That this Court dismisses the first cause of action for defamation should not be construed as a finding that Dykstra’s alleged “treachery” did in fact occur or that any of the accusations ... are true. It is only to say that Dykstra’s reputation for unsportsmanlike conduct and bigotry is already so tarnished that it cannot be further injured by the reference. It is possible that Dykstra has been falsely maligned by numerous individuals over the years, including Darling, and that he has been maliciously prosecuted and wrongfully convicted of various crimes in various different courts. Whether or not that may be the case is not an issue before this Court.

The question before this Court is only whether or not Dykstra can assert a cause of action for defamation. In order to do so, Dykstra must have had a reputation capable of further injury when the reference was published. This Court finds that Dykstra lacked such a reputation at the time of publication. 

It's worth noting how low the stakes (and how small the assertions) are in the Trump story. This is not the so-called "client list"; it's a question of how and whether Trump was involved in some junior-high-level birthday nudge-nudge two decades ago with a guy he used to socialize with. That doesn't address why Fox has been slow in getting to a story -- an attack on the boss-emeritus by the president -- that's been covered already by other properties in the Murdoch stable. That seems to be the part that bears watching.

* For those who don't know, Your Editor has been a Metsies/Red Sox dual national since, like, the Johnson administration. /disclosure