an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My colleague Sandy Levinson asked me whether Roger Clemens got a raw deal. In particular, he asked whether Senator Mitchell's report that Roger Clemens was among the major league baseball players accused of steroid use shows the folly of the Supreme Court's constitutional rules in defamation cases. New York Times v. Sullivan and its progeny hold that public figures cannot succeed in defamation suits unless they show actual malice, i.e., knowledge of falsity or reckless disregard for the truth. (The actual case in point is Gertz v. Robert Welch, which extends the NYT privilege from public officials to public figures like Clemens). After all, Sandy pointed out, Clemens can't clear his name by suing Senator Mitchell. All he can do is cost the newspapers and Mitchell (and himself) hundreds of thousands of dollars in legal fees in a case that he will eventually lose because the bar is set so high. (Sandy's claim, it should be understood, assumes for the sake of argument that Mitchell wrongly accused Clemens of using steroids. If Clemens did use steroids, then he cannot succeed because truth is a defense in a defamation action.).
I don't think that NYT v. Sullivan (or Gertz) are really to blame in this case. After all, even if the constitutional privileges weren't available, (suppose that Clemens were a private figure), Mitchell would probably enjoy various common law privileges, including (conceivably) the privilege of giving advice to an employer (including Major League Baseball) or making a communication on a matter of common interest. These privileges would require Clemens to show that the accusations were unreasonable and made with malice (i.e., ill will or hatred; this, confusingly, is not the same standard as "actual malice" in NYT v. Sullivan). It is also possible that the privilege of fair comment would apply, but that usually applies to cases of opinion. And it is also possible that the Mitchell report, even though it is for Major League Baseball and not for the government, might fall under the absolute common law privilege for public testimony or public reports on matters of public concern. It is likely that Mitchell would enjoy at least one of these common law privileges, in which case Clemens would also very likely lose.
It is true that NYT v. Sullivan makes it even easier for Clemens to lose a libel suit, but the real question is whether it serves the public interest to promote dissemination of information about and public discussion of issues like the steroid scandal in baseball. Both the Constitution and the common law (which applies to public and private figures alike) agree that the dissemination of such information is important.
Clemens, as a public figure, with abundant access to the media, can call as many press conferences as he wants and provide as much evidence as he likes to the press to clear his name. What he can't do is take Mitchell to court and collect damages, unless he can show that Mitchell didn't care whether what he said about Clemens was true or false. It is very likely that Clemens will be unable to do this.
Is NYT v. Sullivan a good idea? Some scholars have suggested that we replace it with a rule that allows a plaintiff to go to a jury on the question of falsity of the accusation in return for waiving any damage award. In fact the current law of defamation sometimes allows this in practice, because the plaintiff can always sue and request a special verdict on truth or falsity. The problem under the current system, however, is getting to a jury in the first place, because courts tend to try to throw defamation claims out on summary judgment. Posted
by JB [link]
I think that in the opinion of many baseball fans, Clemens has a more significant hurdle than Sullivan. And they formed that opinion long before Mitchell's report.
Perhaps "performance enhancing drugs" should be carefully defined. The definition of "drugs" may be fairly simple. But just consider how many "drugs" may enhance our performances, athletic or otherwise, in various ways. Is there to be a special rule for athletes, especially the professionals? Aren't there many other professions and occupations in which "performance enhancing drugs" are used? The Big Pharma culture in America contributes heavily to this problem. Doesn't everyone want to get an edge over others? This is competition. There may have to be line drawing, but with care. The Mitchell Report is like a mirror for many of us. Now everybody, remember to take your vitamins.
Poor ol' Roger Clemens. Shame on that dirty Sullivan court.
It really was better back in the days and countries where in fact the worst slanders were the true ones ... and thus the true slanders were the most actionable. While over here we quibble with how "false" something was. It gets the tort of defamation backwards; it is in fact a tort (which, of course, becomes problematic for the likes of Clemens when the tortfeasor is a Senate committee). And arguably the most injurious statements that can be made about a person are the ones that are true. A false statement can be set straight. A true one has no counter.
Nice post. Practically speaking, Mark is right. At least among those who follow sports, there has long been suspicion of how Clemens rediscovered his fastball in Toronto in his mid-30s. Of course, because Clemens is well-liked -- unlike Bonds -- he got a free pass. I enjoyed how some commentators/experts were "shocked" to see his name on the list.
More to the point, Clemens has already released a statement through his lawyer that was read on ESPN yesterday. As Prof Balkin points out, his agent can book him on national TV anytime he wants. Clemens has more than enough ammunition to fight back in the court of public opinion. And I would not be surprised if my friend's prediction that excuses will be made and all will be forgotten/forgiven w/ Clemens comes true. It's hard to believe that Sullivan/Gertz are shown to be outdated by these facts.
Perhaps we should waterboard Clemens to get the truth out of him. His 35 seconds of panic is obviously outweighed by the potential loss of innocence of millions of young baseball fans (not to mention the concommitant devaluing of Mom and apple pie). Even more importantly, this would be much quicker than using traditional methods of information gathering like interviewing witnesses, conducting forensic studies, and reviewing travel and financial information.
"... which, of course, becomes problematic for the likes of Clemens when the tortfeasor is a Senate committee..."
Guess I'm not following the news down here in the Caribbean as well as I should; I guess I assumed this was a Senatorial investigation. Guess that "Mitchell" ought ot have clued me in; he hasn't been in the Senate for over a decade. Mea culpa; I blame it on the sun....
I don't agree that Clemens can easily defend himself. Once accusations of this type are made, they are almost impossible to refute. He is now guilty of using steroids and nothing he can say or do will ever clear his name. The burden of proof is now on him, and how can you prove that you never did something? Mitchell's report was actually better than I had anticipated, but undoubtedly only the worst parts (the naming of names) will really influence the future of the game.
One interesting side effect of Sullivan is the cover it gives to those actually guilty. Without the barrier of Sullivan, Clemens would have to sue or else his denials would lack credibility. With Sullivan in place, he can issue denials while explaining that he has no claim for defamation.
On a sports level, Clemens is not well-liked. A headhunter who hid behind the designated hitter rule and who, in his AL days, dreaded pitching in a National League park for fear of retaliation, he comes off as the worst of cowards. As a mercenary who in his later years demanded and got special privileges beyond belief -- a half-season's work, exemption from travel with the team -- he defined "prima donna" up.
Legally, he has nothing to fear. When he threw a broken bat at Mike Piazza during the 2000 World Series, he said he thought it was a ball. (Presumably he also thought Piazza was at first base and wearing a Yankees uniform, though not even the New York media dared pursue the matter.) If he takes the stand and says he thought a syringe full of steroids was a Q-Tip and his thigh was his ear, who's to doubt him? The McNaughton Rule will protect him every bit as well as the DH rule. His lawyer's only problem in a libel suit would be in explaining to his client the difference between actual malice and, say, total innocence. The good news for the Rocket is that he can afford the billable hours.
It's too bad Clemens is getting jammed up for doing what many athletes do as a matter of course today. No one injects HGH anymore. Most use homeopathic hgh oral spray or take pills like genf20 to stimulate their own increase of HGH. Both are somewhat less effective than injections but work quite good enough and both are legal for over the counter purchases.