Timing is everything in comedy and politics. Tucker Carlson claimed last night on Fox News that Tony Podesta’s attorney sent a “snarling legal threat” to shut down Carlson’s reporting and commentary on The Podesta Group’s connection to Robert Mueller’s special counsel investigation. The threat, however, seems to predate Podesta’s abrupt decision earlier in the day to leave his company (via RealClearPolitics):
“Tony Podesta resigned as head of his company,” Carlson said. “His excuse? Us. That’s right. He blamed us. In his parting statement, Podesta said this, quote, ‘It is impossible to run a public affairs firm by Fox News and the right-wing media.’ Well, Podesta isn’t just complaining about us — he’s threatening us. This afternoon, we got a letter from Geoff Garinther. Its a lawyer with Venable LLP, a big law firm here in D.C. The letter demands that this show, quote, ‘immediately cease and desist disseminating false and misleading reports about Mr. Podesta and the Podesta Group.’ ”
“It demands we retract and delete all our prior reporting on the Podesta Group and warns if we don’t do this, quote, ‘Mr. Podesta may pursue legal action, including for damages, in order to fully protect his rights,'” Carlson said.
“Podesta’s lawyer wasn’t trying to inform us of anything, but to threaten us — to shut down our reporting on his client,” Carlson said. “One lawyer we talked to earlier today said the Podesta people have used this tactic with others before. It’s common. It is an effort to use fear to control press coverage. We are not intimidated. We have ample evidence from Mueller’s indictment, from a number of confidential sources to paint a pretty clear picture of exactly what the Podesta group was doing for years here in Washington.”
Mr. Podesta can do whatever he wants, but he’s highly unlikely to do anything except waste his money and his attorney’s time. For the purposes of libel and slander laws, Tony Podesta is a public person, which under Sullivan requires a finding of actual malice in order to prevail in a fight against a news outlet. “Actual malice” means that Carlson and Fox News would have to know that the information broadcast was “made with knowledge of its falsity or with reckless disregard of whether it was true or false.” Mere factual error doesn’t cut it, as Sarah Palin discovered in her attempts to sue the New York Times, in which she had a better claim to actual malice — as the newspaper itself had published information that proved the editors’ claims about her false.
Carlson has considerable safe harbor here, both as a reporter and an editorial voice. Fox was not the first outlet to report on Mueller’s interest in Podesta and his lobby shop; NBC News had reported it the day before Carlson’s October 24th report, and the hard-progressive journal Mother Jones discussed it at the same time, along with linking Mercury LLC to the probe. With that reporting in place, it would take a monumental effort to get to “actual malice” on the part of Carlson, even in his commentary.
Another point raised in the C&D is even more amusing. The attorney tried to claim that Carlson would violate the Copyright Act for publishing any portion of the letter sent to Carlson. That’s absolute nonsense. News organizations can quote from copyrighted material under the Fair Use doctrine without incurring a violation, as long as they don’t publish the entirety of the material and as long as they attribute it properly. While it’s generally true that personal letters do have copyright protection, that seems highly unlikely to apply to business speech in this context, especially when the letter itself threatens legal action over public statements.
Coincidentally, that same nonsense also came up in a completely different context today. Yashar Ali shared a C&D he received from an attorney representing a target of an upcoming story on sexual harassment, which (among other laughable assertions) included the warning, “Please note that I am asserting copyright ownership to this letter.” Via Twitchy:
The kind of legal threats you get when you're investigating sexual misconduct. Please, sue me….good luck. pic.twitter.com/vuycXEsCuM
— Yashar Ali 🐘 (@yashar) October 31, 2017
Except maybe he won’t be all that interested in claiming ownership after all:
If you're going to send me a letter saying something didn't occur, don't use this phrase: "jurisdiction where the assault occurred." https://t.co/VwUeCRxEqx
— Yashar Ali 🐘 (@yashar) October 31, 2017
Popehat scoffed at the copyright claim, calling it the signal of a “buffoonish thug” at the bar:
I need to make a "reliable tells this lawyer is a buffoonish thug" list, with "this letter is copyrighted" high on the list.
— Popehat (@Popehat) October 31, 2017
Again, Podesta’s attorney can file any lawsuit he wants, but Fox has a lot of lawyers, too. Besides, the whole thing seems moot at this point. Podesta didn’t announce a lengthy arc to retirement — he bugged out immediately after the indictment, and it appears his departure will be permanent. His attorney will likely have his hands too full with other matters to file nuisance lawsuits that Podesta will have laughed out of court.