Fair game?

Deadspin, the sports and “human interest” blog, has always had an interesting relationship with ESPN: David poking and prodding Goliath, pestering the slow moving monolith with its unhipness, pointing out its warts with great gusto.  It always seemed to me like a little brother making fun of his big brother, frantically trying to get some attention even if it had to be negative.

Recently, though, things have gotten downright ugly.

Instead of focusing their critiques of ESPN on its sports coverage and on-air personalities, Deadspin has turned its attention to some of ESPN’s off-air business people.  On Friday, Deadspin published a post that discussed an alleged affair between two business people - naming each - as well as a rumored affair between a business person and an on-air personality.  Another post from October contained very specific statements about various trysts allegedly undertaken by another ESPN business person - also named - depicted in rather, uh, crude terms. 

Some of those business people have allegedly lost their jobs at ESPN as a result of Deadspin’s posts.  They have spouses, and children.

All of which raises some interesting questions.  Could Deadspin have defamed any of the subjects of these posts?  Are the business people of whom Deadspin writes “public figures” or private persons?  Moreover, even if every word of what Deadspin has published about these ESPN business people turns out to be true, was it appropriate, nonetheless, to publish those stories about their personal lives?  To what end, exactly? 

Very generally, libel is slander in a written form, and a viable cause of action exists against the publisher of the statement if the following elements exist: the statement about the subject must be false, it must harm the reputation of the subject, it must have been published and, if the subject is a public figure, he/she must demonstrate actual malice in the publishing of the false statement (knew the statement was false or acted with reckless disregard) - if the subject is a private figure, the subject need only demonstrate negligence in the publishing of the false statement.

The Law.com dictionary describes a public figure as:

a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star or sports hero.

In the Gertz case, decided by the U.S. Supreme Court (Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)), the necessity of the law to extend greater protection to private persons as versus public figures is discussed:

Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. 9 Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.

Of that hypothetical private person, the Court says this:

He has not accepted public office or assumed an “influential role in ordering society.” Curtis Publishing Co. v. Butts, 388 U.S., at 164 (Warren, C. J., concurring in result). He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.

In the instant situation, one could argue that the ESPN business people about whom Deadspin has written these sordid tales are actually public figures, even if they are not politicians or celebrities: they each have an influential role in ordering society, at least to some limited degree, as members of the press, and have access to the channels of effective communication by virtue of their employment at ESPN, a large media outlet.  Moreover, one could argue that by allegedly having an affair with an on-air personality, at least one of those business people has become a public figure himself.

Alas, were any of the ESPN business people to pursue a defamation action against Deadspin, the sucess of such an endeavor would turn on the truth of the allegations - and, as well all know, the truth is often a nuanced, grayish and slippery thing to get one’s hands around, and a very expensive pursuit as well.  So, a torrent of libel suits against Deadspin is unlikely.

I suppose, then, it is left to the public to decide, regardless of whether Deadspin has defamed anyone, whether the site’s authors are acting in accord with the basic decency of civilized society and deserve our continued patronage.  And, oh yeah, their advertisers, who could, in theory, get frightened off by increasingly aggressive attacks on ESPN business people, thus leaving the authors of such site in search of funding for their, you know, paychecks. 

After all, even when the law might not offer a remedy, a remedy is often available just the same.  Your call Deadspin readers.