Balkinization: Can Roger Clemens Sue George Mitchell

Can Roger Clemens Sue George Mitchell

Paul Finkelman

In a recent exchange on NY Times v. Sullivan and the Mitchell Report, Jack Balkin and Sanyd Levinson assert that Roger Clemens cannot "clear his name" by suing George Mitchell for libel, assuming he never took steroids or HGH. I guess I don't understand why. Mitchell is a private citizens, who has published a report for private entity -- Major League Baseball -- it is a "Report to the Commissioner of Baseball of an Independent Investigation." So I do not understand why Clemens cannot sue Mitchell, MLB, or Bud Selig. The report is copyrighted by the "Office of the Commissioner of Baseball." I assume the copyright holder and the author could be sued for libel. I am sure I am missing something here, so please explain the reasoning. He might not win under Times (I suspect he would not be able to win) but I do not see why he could not sue any of these parties.

It is possible that I am misreading these posts, and that Sandy and Jack are saying that by suing he will not "clear his name." That is a different issue. But surely he can sue Mitchell, Selig, and MLB.

Posted 12:36 AM by Paul Finkelman [link]

Comments:

Are you confusing libel, a private cause of action, with a First Amendment claim, where a state action is needed? I thought Prof Balkin's post showed why even private c/a would tough to prove up.

On a different note, why does Clemens get a pass and Bonds doesn't? Because the press respects Clemens and dislikes (for good reason) Bonds? Why aren't we incredulous that Clemens went from a .500 pitcher to a dominant pitcher in his late-30s and then had an ERA under 3.00 after 40. That's not more suspicious than Bonds???

# posted by

Calvin TerBeek : 2:31 AM

Clemens last year in Boston he had an ERA+ of 139, considerably above the league average. I do feel he was on something in his later years, but even getting husky in Boston, he still had stuff.

# posted by

Pinko Punko : 2:42 AM

I was under the impression that the thesis was that Clemens could not win under the high hurdle of Gertz v. Welch, not that his claim would somehow be barred ab initio.

# posted by

KipEsquire : 7:37 AM

The right to a name clearing hearing is an incident of procedural due process law not available against both state action and a tangible employment action by a state actor; neither is present here.

A common law libel action won't substitute for a name clearing hearing because a public figure plaintiff cannot get to a trial on the merits question of whether a statement of fact on a matter of public concern was false without first producing sufficient evidence of actual malice (knowledge of falsity or reckless disregard) by clear and convincing evidence to defeat a defense summary judgment motion. Because such cases typically are resolved by a grant of summary judgment for insufficient of evidence of actual malice, the court never resolves the underlying question of whether the challenged statement was false, depriving the plaintiff of an adjudication of falsity that would clear his name.

# posted by

Michael Masinter : 11:35 AM

Whoops; I should learn to proofread better:

The right to a name clearing hearing is an incident of procedural due process law not available ABSENT both state action and a tangible employment action by a state actor; neither is present here.

A common law libel action won't substitute for a name clearing hearing because a public figure plaintiff cannot get to a trial on the merits question of whether a statement of fact on a matter of public concern was false without first producing sufficient evidence of actual malice (knowledge of falsity or reckless disregard) by clear and convincing evidence to defeat a defense summary judgment motion. Because such cases typically are resolved by a grant of summary judgment for insufficient of evidence of actual malice, the court never resolves the underlying question of whether the challenged statement was false, depriving the plaintiff of an adjudication of falsity that would clear his name.

# posted by

Michael Masinter : 11:37 AM

Kipesquire is right. Every time you get a law school exam question that says "Can A sue B?" the first answer is yes, of course, A can always sue B. Winning, now that's a separate question.

# posted by

Spot : 1:04 PM

Folks, we're not doing a good job here explaining the burden of proof in a libel case.

Clemens is a "public figure", not a private citizen unknown to most of the public. Therefore, Gertz v. Welch (1973), which involved what the Supreme Court found was a right of a private citizen to sue a publisher for libel under a negligence standard, is not applicable.

Clemens is a public figure and would have to sue George Mitchell and Major League Baseball under the Supreme Court standard set forth in NY Times v. Sullivan (1964): Clemens would have to prove both falsity and that Mitchell and MLB had a malicious motive against Clemens, meaning either they knew the allegation was false or were recklessly uncaring whether the allegation was false. This is why Clemens' suit could be brought, but would likely fail.

Perhaps I am missing something in this discussion and thread, but heck, I'm just a civil trial lawyer....

# posted by

Mitchell J. Freedman : 9:54 AM

"It is possible that I am misreading these posts"

Yes, quite.

# posted by

la Rana : 3:02 PM