Gaetz Could Be Washington’s Latest High-Profile Defamation Defendant

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.

41 thoughts on “Gaetz Could Be Washington’s Latest High-Profile Defamation Defendant”

  1. Turley: “Recently, new such cases were filed against Fox News, CNN, and various public figures.”

    After several weeks, I believe the above reference is Turley’s first mention of the defamation lawsuit against his employer, Fox News. It is rather amusing that he mentions it only in passing and tries to downplay it by referring to it alongside suits against CNN as if Flynn’s $75 million lawsuit against CNN is in the same league as the several billion dollar lawsuits against his Fox company and colleagues! Moreover, Turley has time of enough to write a post speculating about a potential defamation lawsuit against Gaetz, but he has yet to see fit to discuss the defamation lawsuits which threaten the economic livelihood of Fox! While Turley defends obscure conservative professors who are being threatened with termination for exercising their first amendment rights, he did not even comment when Fox’s Lou Dobbs was fired for repeating Trump’s Big Lie! Unbelievable! Why the self-censorship? Anyone? Bueller?

  2. There ARE some issues with the narrative. All if it smells foul.

    If the extortion happened to the father why would he not go to state law enforcement?

    and why wait so long? My understanding is that the extortion happened long before the taping of it. Why go to the FBI?

    surely Gaetz having seen the DOJ practice of scuttling ANY effort to investigate and prosecute ANY FBI agents was known.

    was this just some blunder on his part…to assume this would be handled “nicely?

    so that stinks right there.

    next, is the wire and recording.

    again, why not get out ahead of this and put it in the media…asap…Being first to “dope” the narrative is just being intelligent in this era of trial by press.

    so why wait until ONLY AFTER the SON gets clobbered with allegations of a long standing FBI investigation?

    just on the back of a napkin, this entire thing stinks.

    almost get the feeling that 25 million did trade hands just to get the entire steaming pile out of the courts for ALL PARTIES COMBINED!

    They probably paid each other ….lets just agree this isn’t good for anyone.

    but that taped recording.

    hmmm….is gaetz senior a player? Did he perhaps card in some insurance just in case someone decides to get sporting?

    My bet is the old man probably isn’t as stupid as they upstarts.

    you don’t form a highly successful business in Florida and sell it off for half a billion by being stupid.

    Gotta a good feeling none of this is going anywhere.

    the press will get the memo: not this one, try again!

  3. Why are all of Turley’s assumptions and doubts on the side of the FBI doing what’s right and just and Gaetz doing what’s wrong? Did the FBI arrest McCabe, Rosenstein, Comey, Brennan or Obama? No, they didn’t despite all their crimes including attempted coup d’etat, illegal spying on a Predential campaign and on the President of the United States, and abuse of FISA courts. We saw how the FBI treated Roger Stone vs. how they treated Hunter Biden. The FBI is corrupt to the core and is a Gestapo arm of the DemonRat Party soon to be the Communist Party of America which seeks to rule over all of us precisely in the same way that the Communist Party of China rules over 100% of all Chinese. To assume that the FBI is going to be fair and just to a Trump supporter as vocal as Gaetz is, is to be a gullible patsy. I thought Turley was not that, but I’m disappointed yet again.

    1. agree with the same.

      but it does raise a curious question: why does Gaetz go to FBI with this at all? Why not make it a state investigation?

  4. Yesterday we had questions about why, IF Geatz took a 17 year old across state lines and had sex with her, Geatz was not charged. The FBI has investigated for over a year. No charges.

    Today we have questions about why the FBI has not charged McGee with extortion, since they have the phone call.

    We all know the entire FBI, from rookie shoe leather investigators, to the highest level are corrupt.

    1. @iowan2
      We don’t know anything.
      Turley is making assumptions and suppositions based on his interpretations of the allegations laid out in the press.

      Could Gaetz be grandstanding to fight the accusations in the public eye? Or could we take him at face value ? Or do we take the NYTs allegations at face value.

      What Turley misses is that since Gaetz is a Republican… if he was under investigation for a year… if they had credible evidence, it would have leaked in a heartbeat.

      That you would have seen Pelosi, Adam Schiff and Salwell all over it. Yet nothing.

      Apply Occam’s Razor. The purpose of this is to smear Gaetz who has been s supporter of Trump. That’s his true crime.

    1. Hungary used to be a favorite Soviet communist vacation spot. It doesn’t surprise me that Budapest tore down that statue immediately. We should learn from them.

      Budapest is a wonderful city. Why ruin it good looks?

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