Hulk Hogan's unfortunate precedent.

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Roger Ailes' Empty Lawsuit Is a Threat to Free Speech

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The defamation lawsuit that Roger Ailes’s lawyer is threatening against New York magazine would seem to have no chance of legal success.

So why has the former chairman of Fox News bothered to hire the lawyer who brought down Gawker on behalf of Hulk Hogan? The answer is that the threat puts the magazine on the defensive -- and that's a problem for free speech. The First Amendment has been interpreted to protect even defamatory speech against public figures. But as the Hogan case shows, not every court applies the constitutional standard correctly. In that environment, even legally empty threats have a chilling effect.

First, the law: under the landmark 1964 New York Times v. Sullivan decision, a libel case against a public figure can only succeed if the defamatory statements are both false and made with actual malice. Malice means that either the publication knew the statements were false or else recklessly disregarded the truth.

There's no way Ailes can satisfy this standard. New York magazine's reporting on his involvement in sexual harassment has already been validated by multiple on-the-record sources, including, most prominently, Gretchen Carlson, who just got a $20 million settlement from Fox. In other words, the reporting is true. And even if some details turned out to be inaccurate, they won't have been fabricated or published with reckless disregard for their falsehood, since they would be part of the pattern of harassment that the magazine set out to document.

On the surface, then, the magazine is precisely the kind of media defendant supposed to be protected by the Sullivan precedent. Strictly speaking, there's no successful lawsuit possible.

Thus, whatever the explanation for Ailes retaining the attorney Charles Harder, it isn’t that Ailes expects to win his case in court.

Harder, who has written to the magazine to ask it to preserve correspondence relevant to Ailes in anticipation of a future suit, is unlikely to be worried about wasting his time. Simply being mentioned in connection with Ailes has garnered major publicity for the lawyer. Ask yourself, did you remember the name of the lawyer who represented Hulk Hogan before now? I didn't, and I've written about the case a couple of times.

Nor is Harder likely to be worried about harming his reputation by hinting at a lawsuit he couldn't possibly win. All he’s done so far is send a letter that says a lawsuit is possible. If and when that suit ever materializes, there won't be any consequences for him.

Ailes, of course, is trying to change the subject from his misdeeds to the magazine's decision to write about them. There's nothing inherently wrong with that trick, cheap though it may be.

What’s worrisome is that Ailes is also trying to put New York magazine on the defensive by making its editors and executives worry that they might become vulnerable in the same way that Gawker did. The case against Gawker should never have made it to a jury. Yet the trial judge allowed the case to reach a verdict, which an intermediate Florida appellate court declined to strike down.

Technically, Hogan sued for breach of privacy, not defamation. He can’t deny that he appeared in the sex tape that was made public by Gawker. The reason the verdict hasn't yet been struck down is that the Supreme Court hasn’t directly held that the New York Times v. Sullivan standard applies to lawsuits for public disclosure of private facts. The Florida judges must know this; but they’re exploiting the temporary gap in Supreme Court precedent to punish online media because they prefer a climate of greater privacy.

Ailes’s threatened lawsuit is an excellent piece of evidence as to why the Gawker verdict was not simply wrong but highly dangerous. It's no coincidence that Ailes hired the same lawyer that Hogan used. The association is intentional.

That's the essence of a chilling effect on free speech. Every media outlet that wants to bring a public figure into disrepute -- however accurately -- must now stop and think about whether it's worth it to face the risk of a lawsuit.

Ailes can't put the genie back in the bottle in his own case. But by his maneuver, intended in his own case only to change the subject and shift the strategic balance, he’s doing damage to free speech.

You might be sympathetic to Hogan on the plausible theory that what you do in the bedroom should be private. But Ailes’s possible suit shows why free speech must outweigh Hogan’s privacy interests. When courts tolerate severe limits on what the media can say about public figures, the free press itself is threatened.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Max Berley at mberley@bloomberg.net