Why Gary Condit should persevere in his defamation suit
By John W. Dean
(FindLaw) -- On December 16, 2002, former California Congressman Gary Condit filed a defamation lawsuit against gossip columnist and true crime author Dominick Dunne. I want to urge him to go the distance with his suit.
Conduit's lawsuit is precisely what is needed to address the problems with contemporary libel and slander law. Once, this was a well-intentioned and vital body of law. But over time, it has been distorted and deformed by aggressively-defended gossip-mongers and sleaze merchants, seeking sanctuary from responsibility in the name of free speech.
Free speech should not -- and does not -- mean freedom to falsely attack public figures. For too long, this body of law has overshot liberty, and tilted toward license. If more stand up to media attacks and sue, as Gary Condit has decided to do, the body of law will be much improved.
The trashing of Gary Condit
When it was learned that Gary Condit had had an affair with Chandra Levy, the then-missing Federal Bureau of Prisons intern, their relationship became the focus of a media frenzy. Cable talk shows and talk radio speculated endlessly, 24/7.
Radio host Laura Ingraham, for instance, appeared on "Larry King Live" three times in six days to beat up on Condit. Explaining the story's appeal, she told Howard Kurtz of The Washington Post that it was "Joey Buttafuoco, Clinton and O.J. thrown together, and a little bit of JonBenet Ramsey."
The Guardian's newspaper The Observer reported that cable talk hosts, supermarket tabloids, "and even Dominick Dunne ... branded Condit a liar, a cheat, a serial adulterer, a scumbag and a disgrace to American politics." Not surprisingly, Condit lost his bid for reelection.
Yet neither the Washington Metropolitan Police, nor the FBI, who have been investigating the murder of Chandra Levy have any evidence or reason to believe Gary Condit was involved in the disappearance and death. The discovery of her body in Rock Creek Park in May 2002 provided further evidence in the case, yet Condit was still never named by any investigating body. To this day, he has never been a suspect -- except in the minds of those with no real information.
Dominick Dunne has led the speculation that Condit is a culprit.
Dunne's charge: Implying Condit hired a hit man
I first heard Dunne hold forth on Gary Condit on "Larry King Live" on August 24, 2001. Frankly, I was amazed. While I was well aware that Dunne enjoys publicly trafficking in gossip, I was surprised that he was making unfounded charges against Condit on national television.
"Well, you know, Larry, I look on this as a writer," Dunne began. "The guy looked -- he just looks dishonest to me. He looks like he lies to me." Larry King then asked, "Dominick, you are not going [to take] this a step further and saying he was involved in her disappearance? I mean, you can't presume that?"
But that was exactly what Dunne was presuming. "I mean, there is just something sneaky about this guy," he went on. "And you know, I still think -- I still think that we cannot overlook the thing about motorcycles in this story. He is a big motorcyclist, and he rides with the Hell's Angels, and I think that that is how she disappeared, on the back of a motorcycle."
Attorney Mark Geragos, also on the show, was stunned. "There is no evidence of it, Dominick," he objected. "There is nothing whatsoever that suggests it. I understand that as a writer you've got a very fertile mind and you are entitled to that, and that's what makes you such a great writer. But at the same time, it is, I think, unfair to make the leap from that the guy is -- is apparently committing adultery, and go from that to the fact that he is also a killer."
"I didn't say he was a killer," Dunne injected, "I said it was not out of the question." But Geragos immediately reminded Dunne of his charge: "You said maybe he hired a hit man." Dunne said nothing further.
Dunne spreads the tale of 'The Horse Whisperer'
The Condit media craze ended abruptly on September 11th. However, Dominick Dunne's interest in Condit continued.
On December 20, 2001, Dunne said he "felt like creating some trouble" for Condit. To do so, he went on Laura Ingraham's nationwide radio show with a remarkable new Condit story. (Unfortunately for Dunne, the tale was recorded; it was also recently reported in the New York Times by Felicity Barringer.)
On the show, Dunne said he had received a call from Germany, from a man who identified himself as the animal behavior expert. In fact, he claimed to be the famous horse whisperer from Nicholas Evans' novel, and Robert Redford's movie, "The Horse Whisperer." (Horse whisperers are men who claim they can communicate with horses. Although no horse has ever confirmed this is possible, wealthy horse breeders and racers, always looking for an edge, hire them to chat with their animals.)
Mr. Whisperer told Dunne he had been in Saudi Arabia talking to horses belonging to a sheik. But he was not calling about horse business. Mr. Whisperer said he had learned the real story on Chandra Levy's disappearance. Right from the horse's mouth, so to speak -- or more specifically, from a man who procured beautiful women for wealthy Middle Easterners, whom Mr. Whisperer said he met in Dubai.
According to Mr. Whisperer, Mr. Pimp had said he had witnessed Chandra Levy's abduction. That she had been carried onto a private jet and, Mr. Pimp believed, dumped into the Atlantic Ocean.
All of this, Dunne recounted on a national radio show -- without providing, or even claiming that he himself knew, the identity of his source, and without providing any good reason for any listener to believe he was at all reliable.
As Dunne was delighting the audience with his story, he paused. "Now some of this I can't explain, and I don't want to get into any trouble saying [it]," he noted, realizing he indeed could get into trouble. "But according to what the procurer told the horse whisperer who told me, is that Gary Condit was often a guest at some of the Middle Eastern embassies in Washington — where all these ladies were."
Dunne then proceeded to implicate Condit in Levy's disappearance and indeed, her murder: He told the radio audience that according to the procurer and the horse whisperer, "[Condit] had let it be known that he was in a relationship with a woman that was over. But she was a clinger. He couldn't get rid of her. And he had made promises to her that he couldn't keep. And apparently she knew things about him and had threatened to go public. And at one point he said, `This woman is driving me crazy,' or words to that effect. And I wrote all this down at the time, and what the horse whisperer said that the procurer said is, by saying that, he created the environment that led to her disappearance. And she shortly thereafter vanished."
Dunne added, "I can't vouch for any of this." But then he continued on, explaining that a semi-conscious Chandra Levy had been hustled aboard a private plane, and noting that Mr. Pimp had speculated that "she was dropped at sea."
Dunne repeats the 'Horse Whisperer' tale even after Levy's boy is found
Dunne continued to make trouble for Congressman Condit. According to the complaint filed in the Condit lawsuit, he repeated the horse whisperer's story at private parties in Beverly Hills and New York City. On February 13, 2002, he told a shorter version of it on "Larry King Live."
Little wonder that Condit filed a lawsuit. These charges are outrageous. And when Chandra Levy's body was found in Rock Creek Park in May, 2002, they were proven obviously false.
Amazingly, however, the discovery of Condit's body did not stop Dunne. Rather, he simply offered a more nuanced account of Condit's supposed complicity.
On May 22, 2002, when discussing Condit's alleged role, Dunne told the Boston Herald, "I call it the Thomas Becket syndrome. Where the powerful man says, 'She's driving me crazy,' and the people around him get the message."
The message from Dunne was very clear as well. Thomas Becket, of course, was beheaded by knights doing the dirty deed for King Henry II. Rather than telling them to kill Becket, the King merely asked "Who will rid me of this meddlesome priest?" By invoking Becket, Dunne thus was claiming that Condit had merely made known his problem, and that as a result, Chandra was murdered.
If Gary Condit cannot prevail in a defamation action against Dominick Dunne for his statements, there is no defamation law in this country to protect former and present public officials and public figures at all. And if that is the case, it invites extra-legal means -- vigilanteism -- to settle such disputes, because words are weapons. And surely no one wants to see a revival of dueling to settle such matters.
Why the problems with Condit's defamation lawsuit are surmountable
In an earlier column for this site, my fellow columnist Julie Hilden explained the difficulties confronting Condit in continuing with his lawsuit. Hilden assessed these difficulties as so severe, she advised Condit to "call his lawyer and withdraw his case." With all due respect to Hilden, a knowledgeable, experienced and excellent First Amendment lawyer, I'm delighted he did not follow her advice. (Read Hilden's column)
Condit's experienced and able lawyer, L. Lin Wood of Atlanta, Georgia, no doubt advised him about these problems before filing the suit. Condit made the decision to go forward nevertheless. He did the right thing: While the problems Hilden sets forth are real, none of them are insurmountable.
This is not to say Hilden's views are wrong. To the contrary, she's got it exactly right. But she has the point of view of a defense lawyer, the job in which she once toiled. I have a point of view of a plaintiff, a status in which I toiled long (and successfully). Until you've been defamed, and turned to the courts to right the wrong, I'm not sure anyone can't fully appreciate our country's defamation laws -- or lack thereof. But even with full knowledge of the law's limits, I still believe Condit has a fighting chance.
First, Hilden raises the fact of Dunne being a sympathetic defendant, while Condit is an unsympathetic plaintiff. This may be true, but there is no telling how a jury will, in fact, see it. Every jury trial is a crapshoot, notwithstanding the most sophisticated of techniques employed in jury selection. This lawsuit is in U.S. District Court for the Southern District of New York, and no district has more unpredictable juries.
Next Hilden correctly notes the difficulty of proving Dunne's statements false and proving damages. Taking the damages issue first, Condit's attorney, Wood, told the Fresno Bee that his client did not file the suit "to financially benefit." Rather "[a]s a matter of principle, there are some statements that one simply cannot ignore." In short, Condit will be happy with a nominal award, and no jury could say these statements did not cause any damage.
What about proving the statements false? As Hilden notes, Condit must prove "he did not kill [Chandra] or know about her death before hand." And "it's extremely hard to prove a negative." But it's not that hard.
After all, Condit can avoid having his case dismissed by merely submitting an affidavit stating that he did not kill Chandra, or have anything to do with it. The burden then would shift to Dunne to prove the truth of his statements. Similarly, at trial, if Condit gives testimony to the same effect, the issue becomes a question for the jury, and it will be up to Dunne to rebut what Condit has said under oath.
Weathering discovery: With a good attorney, Condit ought to make it through
What about the discovery process? Hilden asserts it will be very hard for Condit and his family to undergo, and to some extent, she's correct: This is where defense lawyers really try to make the defamation plaintiff's life miserable. But she underestimates a good plaintiff's attorney's ability to ensure that misery has limits.
Discovery in a defamation case can be as open as the presiding judge (or magistrate) permits. Dunne's defense counsel will no doubt seek to take the depositions of Condit, his wife, his children, his former staff, his friends, and his dog. All will be asked questions designed to embarrass and humiliate them, with the hope it will discourage Condit from proceeding with his lawsuit.
However, a good plaintiff's lawyer -- and L. Lin Wood is that -- can rein in these efforts, and protect his client. If the judge or magistrate assigned to the case is good, he or she will also prevent defense attorneys from running wild with their discovery.
Granted, if Condit has had other adulterous affairs, they will be surfaced. So will the nature of Condit's relationship with his wife. This goes with the territory for such lawsuits. Worse, many defense attorneys leak such information to the news media, hoping to make it all just that much more unbearable for the plaintiff.
What about Hilden's point that Condit will have to waive Fifth Amendment rights against self-incrimination if he is to succeed in the suit? This, again, is a decision Condit surely has already made, in consultation with his excellent lawyer.
It is difficult to believe Condit would have filed this lawsuit if he planned to take the Fifth Amendment on questions relating to Levy's murder, or to, for example, his whereabouts on the day of his disappearance. Presumably, Condit is ready to grin and bear it, in order to clear his name. Indeed, assuming he's innocent, he may hope for some vindication from the suit.
In addition, discovery is a two way street. If Dunne's lawyer gets carried away with her discovery, Condit's lawyer can be equally aggressive in digging into Dunne's background and past. Defamation lawsuits rank right down there with divorce lawsuits in tit-for-tat nastiness, and Condit has been anything but a shrinking violet in all this. Dunne did not pick a fight with a weakling.
Proving actual malice: Why it may well be possible for Condit to do
Hilden explained in her column that "actual malice" -- subjective awareness of probable falsity -- is the state of mind Condit must prove Dunne possessed when he told his tales. Showing Dunne knew of the probable falsity of his statements is, admittedly, a heavy burden. But it is not an impossible one to carry -- particularly given the facts that have surfaced so far in this case.
Granted, Dunne will doubtless claim he believed what he said was true, or probably true and thus that he did not possess "actual malice." But that will be far from the end of the matter -- libel cases don't end just because of the defendant's say-so. Far from it: The defendant's say-so is just one piece of evidence relating to his state of mind, and due to his incentive to lie, a relatively weak one.
Although defamation law is technically a creature of state law, the U.S. Supreme Court has "constitutionalized" it by making clear that it is subject to the First Amendment, and then issuing a series of decisions -- most famously, New York Times Co. v. Sullivan -- explaining what the First Amendment requires. In these precedents, the Court has recognized that no person being sued for defamation is likely to concede that he or she believed their statements contained any falsity.
To the contrary, defamation defendants virtually always claim they believed the statements they made were true. Plaintiffs often prevail in suing them, just the same
Some defendants claim that they were merely offering an opinion. And if one's statements consisted of opinions only, they cannot be defamatory, for defamation requires a false statement of fact. But Dunne is unlikely to be able to successfully claim opinion. His statements charging Condit with complicity in a kidnapping and murder are purely factual. You can tell, because the discovery of Levy's body disproved them; you can't disprove an opinion. Moreover, while the Supreme Court has not ruled on it, lower courts in New York have said accusing a person of a crime is not an opinion.
Returning, then, to the actual malice issue, what evidence of Dunne's state of mind exists, beyond his own say-so? Inferential proof is legally acceptable -- that is, actual malice can be inferred from objective facts, according to Supreme Court rulings, and other leading defamation cases resolved by the lower courts.
What counts as acceptable inferential proof? Here are a few court-approved examples: Condit could try to show that Dunne relied on a questionable source (this one should be a no-brainer), or that he failed to interview key witnesses, or ask key questions. He could also try to show that Dunne possessed an ulterior motive, such as ill-will towards him, or made an advance announcement to "muckrake."
Alternatively, he could show Dunne's statements were inherently improbably, or even outright fabricated, or a product of the imagination. Or he could show that Dunne ignored contrary evidence (the finding of Levy's body in Rock Creek Park, perhaps?) developed through law enforcement investigations.
In fact, Condit may already have such evidence, or know where he can find it with discovery. Or he may simply be counting -- not unreasonably -- on his belief that a story as farfetched as Dunne's can hardly be the product of careful and responsible investigation, and that discovery is thus likely to unearth evidence of the kind Condit needs to prevail.
Condit is not the first member of Congress to bring a defamation suit
Contrary to some commentary, Condit is not the first member of the Congress to file such a lawsuit. Arizona Senator Barry Goldwater, following his unsuccessful run for the presidency in 1964, filed a defamation lawsuit against the publisher of FACT magazine, which had claimed that Goldwater was nuts, based on a poll of psychiatrists.
It took years, but Goldwater won. Even better, his case made pro-plaintiff law, which will be helpful to Condit. Goldwater's case was in the U.S. Court of Appeals for the Second Circuit, where Condit's case is also being litigated, and thus will be binding precedent in Condit's suit. In its opinion there, the Second Circuit held that a plaintiff can establish a defendant's reckless state of mind with objective evidence; subjective evidence -- from the defendant himself, or his contemporaneous notes or a similar source -- is not necessary.
For all the reasons Hilden correctly raised, few former or current public officials file lawsuits. Rather than shrinking from the burden, it's good that Gary Condit (and his wife, who has filed her own lawsuit in California) have chosen to stand up, fight false charges, and correct the record. Rest assured, however, that not many in the media will applaud them for doing so.
John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.