Last January, I received a letter threatening me with a defamation lawsuit if I continued my criticism of Hunter Biden, including allegations of criminal conduct. It all seemed part of a “Legion of Doom” defense hatched by Biden supporters reportedly to target critics and even potential witnesses. I proceeded to write three more columns repeating the claims, but did not hear again from the Biden team.
Now, it is the Biden defense that is being targeted with defamation lawsuits. IRS investigators Gary Shapley and Joe Ziegler are suing attorney Abbe Lowell over public allegations of criminal conduct on their part.
Lowell was hit with a $20 million defamation lawsuit that alleges “clear malice” in public allegations of criminally leaking grand jury material and other offenses.
Due to their extensive public interviews, Shapley and Ziegler would be considered “public figures” for the purposes of defamation. That will make the case challenging, particularly because Lowell will argue that he was zealously defending his client.
The case will also trigger massive fights over attorney-client privilege and other defenses. However, if allowed significant discovery, the case may shed light on the media reports of a scorched Earth strategy of the Biden team targeting critics and witnesses.
The whistleblowers claim, however, that Lowell “falsely and maliciously” accused them of “the illegal disclosure of grand jury materials and taxpayer return information — despite the fact that they never publicly discussed return information that was not already public.” Those constitute per se categories of common law defamation, which include allegations of criminal conduct. The alleged misconduct would constitute federal felonies.
One of the allegations is that Lowell or the team accused them of leaking information to the press revealing that an investigation was taking place, apparently in violation of federal law. However, months earlier, they allege, Hunter himself publicly disclosed that he was the subject of a criminal tax investigation.
Lowell will likely argue that he was seeking congressional action on allegations to establish if his client was the subject of unlawful conduct by the government. He will argue that such defamation lawsuits chill communications with government.
There is an obvious irony in that defense given the scorched Earth tactics of the Biden team to target those of us who have written on the corruption of the First Family.
The suing of Lowell may offer another opportunity to review the standard for public figures, which I have previously questioned.
In New York Times v. Sullivan, Justice William Brennan wrote for a unanimous court in declaring that the First Amendment required a higher standard of proof for defamation than simple negligence for public officials.
News outfits were being targeted at the time by anti-segregation figures in lawsuits to deter them from covering the civil rights marches. Imposing a high standard for proof of defamation, Brennan sought to give the free press “breathing space” to carry out its key function in our system.
The court believed that public officials have ample means to rebut false statements, but that it’s essential for democracy for voters and reporters to be able to challenge government officials. To achieve that breathing space, the court required that public officials had to prove “actual malice,” where the defendant had actual knowledge of the falsity of a statement or showed reckless disregard of whether it was true or false.
That standard was later extended to public figures. The Court noted that celebrities are powerful in our celebrity-driven culture, have ample means at their disposal to protect themselves and chose their lives of notoriety.
Two justices have indicated that they might be open to the idea of revisiting New York Times v. Sullivan: Clarence Thomas and Neil Gorsuch. Gorsuch notably objected to the denial of certiorari in Berisha v. Lawson, in which author Guy Lawson published a book detailing the “true story” of three Miami youngsters who allegedly became international arms dealers.
A central figure in the story was Shkelzen Berisha, the son of Albania’s former prime minister. He sued Lawson alleging defamation and claimed that he was not, as portrayed, an associate of the Albanian mafia and that Lawson used unreliable sources for his account.
Berisha is a public figure rather than a public official.
The problem is that there is one missing element to imposing a higher burden on public figures like Berisha or the two whistleblowers: furthering the democratic process. In teaching defamation, the actual malice standard rests convincingly on a democratic rationale that a free people and a free press must have breathing space to criticize the government and their leaders. It helps protect and perfect democracy.
As I discussed earlier, I have struggled in class to offer the same compelling rationale for applying the standard to anyone who is considered a public figure. It takes very little to qualify as a public figure, or a “limited-purpose public figure.” However, why should private success alone expose someone like the IRS whistleblowers or athletes to a higher burden of proof for defamation? Writing about hot-dog-eating champion Michelle Lesco does not protect core democratic principles or even support core journalistic principles. To succeed, a Kardashian would still have to prove that a statement was false and unreasonable to print. Moreover, publications are protected in most states by retraction statutes limiting or blocking damages for corrected stories. Finally, opinion is already protected from defamation actions.
Clearly, the public figure standard is an obvious benefit to the media. However, without a compelling argument for a constitutional standard for public figures, it seems more like a judicially maintained subsidy or shield.
Notably, the media, including the New York Times and CNN, have lost key court battles in defamation cases. Those cases also could bring a new review of the public figure standard.
Here is the complaint: Shapley v. Lowell
