We have been discussing a slew of defamation actions this year. Indeed, for a torts professor, this could prove the golden age of defamation. Recently, new such cases were filed against Fox News, CNN, and various public figures. Those cases join various cases against figures like Donald Trump, who recently lost a major ruling. It now seems likely that Florida Rep. Matt Gaetz will be sued in the ongoing scandal involving allegations of sex trafficking. Like many, I was surprised to watch Tucker Carlson’s interview with Gaetz on the first night of the scandal and hear Gaetz identify by name (and law firm) the lawyer who he claims was extorting him. That lawyer is former Justice Department lawyer David McGee, who presumably will be filing a libel action against the congressman. This could prove a “double tap” for Gaetz, 38, who could face a criminal charge and a civil lawsuit as a result of the scandal.
Gaetz denies that he ever had a relationship with a 17-year-old girl. Instead, he offered an elaborate account of an effort to extort him for $25 million in a bizarre plan to secure the release of hostage Robert Levinson, a former DEA and FBI agent who disappeared in Iran in 2007. Levinson is believed to have been on a mission for the CIA at the time.
Gaetz released a statement that “Over the past several weeks my family and I have been victims of an organized criminal extortion involving a former DOJ official seeking $25 million while threatening to smear my name.”
David McGee served for the Department of Justice and has practiced law for 37 years. He now practices in Florida at the firm Beggs & Lane.
Both Gaetz and McGee refer to a call that McGee had with the Gaetz’s father, who reportedly taped the call at the request of the FBI. Both Gaetz and McGee insist that the call will clear them. Unidentified sources deny that the call contains the extortion demand by McGee.
If Gaetz’s account is false, this is a particularly strong defamation case. The extortion allegation would fall into a per se category of defamation. Those per se categories commonly include (1) “imputation of certain crimes” to the plaintiff; (2) “imputation . . . of a loathsome disease” to the plaintiff; (3) “imputation . . . of unchastity to a woman;” or (4) defamation “affecting the plaintiff in his business, trade, profession, or office.” In Florida, the courts describe such actions in the following way:
“A written publication constitutes libel per se under Florida law if, when considered alone and without innuendo, it (1) charges that a person has committed an infamous crime; (2) tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (3) tends to injure one in his trade or profession.”
Alan v. Wells Fargo Bank, N.A., 604 F. App’x 863, 865 (11th Cir. 2015).
This would satisfy both per se categories for alleging criminal conduct and impugning a professional reputation. Broadcast news is treated as libel rather than slander in most states, though there are also written statements by Gaetz to support a libel charge (with presumed damages). “The significance of the classification of a communication as actionable per se lies in the fact that its victim need not plead or prove malice (except where a privilege is involved) or special damage because malice and the occureence [sic] of damage are both presumed from the nature of the defamation.” Wolfson v. Kirk, 273 So. 2d 774, 777 (Fla. Dist. Ct. App. 1973).
One question will be the legal status of McGee and whether he constitutes a public figure.
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.
McGee is likely a public figure since he has handled high-profile cases and engaged in public interviews. If so, in order to prevail, McGee must show either actual knowledge of its falsity or a reckless disregard of the truth.
That is usually a very difficult standard to satisfy but this case may be an exception. Gaetz maintains an open and direct extortion demand: $25 million and the sex trafficking allegations would go away. Gaetz further maintains the call will show such a scheme.
It is hard to believe that the call shows such clear extortion when the FBI was listening and did not arrest McGee. Instead, sources indicate that it is Gaetz who is facing a criminal charge in conjunction with Joel Greenberg, a former Seminole County tax collector who was charged last summer with sex trafficking.
We still have surprisingly little confirmation on basic facts like the very existence of this underaged girl. However, a defamation case would seem obvious if this call is not the smoking gun evidence claimed by Gaetz.