This weekend, we discussed the public threats by the Lincoln Project of a defamation action against Rudy Giuliani. The Project itself has faced questions of defaming the members of the Trump family. The Project has been accused of doxxing and trolling Republicans and waging a campaign of harassment targeting election lawyers after Biden was declared the winner of the 2020 election. In the Giuliani controversy, co-founder Steve Schmidt said that he was “thrilled” by Giuliani’s interview and appeared to relish the possibility of a defamation action. Within 48 hours, the Project was involved in yet another possible defamation controversy after it publicly declared that its own co-founder, John Weaver, is “a predator, a liar, and an abuser.”
As noted earlier, I have followed the explosion of defamation lawsuits and claims for the last four years with particular interest since I have taught defamation for the last 30 years. This has been a bonanza of such cases, which I often discuss with my students. While many claims of defamation have been resulted in filings, we have had a number of high profile political controversies turn into actual tort litigation. Yet, in a reflection of the Project’s own signature style, I was attacked when I tweeted that this could trigger another defamation action. I received emails that I was defending a pedophile and abuser by simply noting that the dispute could lead to litigation given Weaver’s denials. I have never met Schmidt or said anything in support of him. Indeed, I have been one of the most vocal critics of Schmidt’s Lincoln Project for its vicious rhetoric and abusive tactics. Yet, in today’s politics, it is easier to attack people personally than address their viewpoints. Indeed, hate is addictive and such attacks relieve people of the burden of reason. The Lincoln Project has raised millions in appealing to such visceral impulses. There is a sense of utter impunity in attacks against those deemed abusers or enablers. Intolerance is now viewed as a virtue. Weaver himself once proudly declared “In our party, intolerance can no longer be tolerated,” a license claimed by academics and activists to attack and abuse others.
Now back to the defamation issue. The online magazine The American Conservative previously disclosed that Weaver has long been accused of sending unsolicited sexual messages online to young men. Weaver, who worked for the late Senator John McCain (R., Ariz.) and former Governor John Kasich, has been accused of such conduct for many years. Then this weekend, the mainstream media finally reported on the story. Almost two dozen men claim to have been sexually harassed by Weaver, an astonishing number of alleged victims.
Weaver now accepts that some messages were “inappropriate” but maintains that he “viewed [them] as consensual, mutual conversations at the time.”
After the stories rans, the Lincoln Project denounced its co-founder as “a predator, a liar, and an abuser.”
The allegations appear quite damning and well documented. One victim says that he was only 14 when the messages began. However, the Lincoln Project statement on Weaver was written as a fact and did not even use the qualifier “as alleged.” That is rare for a major organization with legal counsel. There has been no criminal investigation completed, let alone an adjudication. That is usually the standard for counsel to insert qualifiers, particularly when discussing a former employee or officer. Instead, the statement read like many of the Lincoln Project attack ads.
The question is whether the Lincoln Project could be sued by Weaver.
As a threshold point, Weaver may not want a lawsuit that would open himself up to discovery and particularly depositions. With 21 men already on record, litigation would be brutal. However, as seen in the Epstein litigation, lawsuits tend to spur counter lawsuits and defamation actions are common in such fights.
Now to the merits. Weaver is clearly a “public figure” due to his political career and co-founding of the Lincoln Project. This issue will turn on Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. This is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, Weaver must show either actual knowledge of its falsity or a reckless disregard of the truth.
Truth remains the primary defense to defamation.
In this case, the Lincoln Project is clearly accusing Weaver of criminal conduct. The Lincoln Project noted that Giuliani did the same thing by saying that someone associated with the Project helped organize the recent riot on Capitol hill. This is more direct and Weaver insists that he viewed the messages as consensual. As such, it would fall into the per se categories of defamation which include allegations of criminal conduct as well as professional misconduct.
Unlike the Giuliani controversy, there is little “wiggle room” on the terms used by the Project. Again, it is surprising to see the absence of qualifiers and the statement of the allegations as fact.
The Project also accused Weaver of using his “position of power and trust” to victimize these men.
As such, Weaver would have a cognizable defamation action. Unlike many lawsuits, this would not turn on the interpretation of the words but solely truth. The Lincoln Project would need to prove that he was indeed “a predator, a liar, and an abuser” who used his positions to victimize others.
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