The National Enquirer is in the news rather than reporting it—not for printing that Elvis is alive and well, but for its alleged role as “a dirty-tricks shop for Donald J. Trump in 2016,” as The New York Times put it in an article that described the supermarket tabloid as “the most powerful print publication in America.” The Enquirer served as a propaganda rag for The Donald, first targeting Ted Cruz during the primaries and then amplifying anti-Hillary conspiracy theories like “PizzaGate,” the ridiculous stories that candidate Clinton was sleeping with Huma Abedin and that she had hired a “hitman” to murder people who annoyed her.
It paid $150,000 for the story of a former Playboy model who said she had an affair with our current president—so they could bury it. (They call this a “catch-and-kill” deal.)
Even for the pond-scum standards of the National Enquirer, this is super sleazy. Mainstream media outlets like the Times are pointing out how gross and yucky the Enquirer is and they’re right to do so.
What these august guardians of the Fourth Estate are not as eager to talk about is how, when it comes to a little-known law with a massive effect on libel and defamation law, respectable print institutions like the New York Times are on the same side as such exemplars of yellow journalism as the National Enquirer.
Twenty-eight states—including many of the most populous—have “anti-SLAPP” laws ostensibly designed to protect newspapers, radio and television outlets from being sued for libel or defamation.
Their real purpose is to allow the media to get away with murder.
Let’s say a newspaper prints an article that destroys your reputation: for example, you’re a teacher and the piece says you sexually assaulted students. Now let’s say that you’re innocent. Not only that, you can prove you’re innocent. So you sue the paper for defamation or libel.
In the old days, your lawsuit would head to discovery and then to trial where a jury of your peers would weigh the evidence. If 12 men and women good and true agreed that the paper had lied about you and hurt your reputation, they might award you damages to make up for lost wages and other financial harm. After all, even a verdict in your favor probably wouldn’t cause a school district to be willing to hire you.
Now we have anti-SLAPP. If you live in a state with one of these pretzel-logic statutes, the odds of getting justice are very low. It doesn’t matter how brazen the lie about you was or how much it hurt you or your livelihood. Even if you can prove the paper knew what they said about you wasn’t true when they decided to print it, an anti-SLAPP motion will probably stop you dead in your tracks—assuming you can find a lawyer willing to represent you in a state with an anti-SLAPP law in the first place. As a defamation law expert in California told me, “Defamation law is effectively dead. There is no redress.”
Here’s how it works. First you sue. Then the paper that slimed you files an anti-SLAPP motion. Discovery—subpoenaing each other’s documents, deposing witnesses on both sides—halts before it begins. So you can’t collect evidence. Years pass. Legal bills mount. Without access to documents and witnesses you have to convince a judge—not a jury—that your case doesn’t involve “privileged communications”—whatever that is—and that you’ll probably prevail before a jury. Of course, the judge doesn’t know that. Odds are you’ll never see that jury. Here’s the best part: after the judge tosses your case, you—the victim!—have to pay the legal fees of the publication that tried to ruin you.
Because they violate the centuries-old right to trial by jury, two state Supreme Courts—in Washington and Minnesota—have gotten rid of their anti-SLAPP statutes, ruling them unconstitutional. But there’s still a long way to go before sanity prevails; if anything, the momentum is for more states to legalize defamation with anti-SLAPP laws.
Because anti-SLAPP motions are themselves the subject of years-long litigation and appeals, trial lawyers rake in hundreds of millions of dollars a year from the anti-SLAPP racket. The only victims are plaintiffs forced into bankruptcy.
Run a Google search for “criticism of anti-SLAPP laws” and you’ll likely come up empty. News articles about anti-SLAPP contain countless quotes in favor, none against.
Media companies love anti-SLAPP laws because they allow them to run “fake news” day after day without the slightest worry of being held accountable for their perfidy. Even liberal former labor secretary Robert Reich has fallen for anti-SLAPP propaganda, which holds that such laws help poor individuals defend themselves against frivolous lawsuits filed by deep-pocketed corporations when, in fact, the opposite is more often true.
A California court recently ruled in favor of an anti-SLAPP motion filed against fitness icon Richard Simmons by the National Enquirer. Simmons had sued the tabloid after it falsely published a BS cover story (which it described as “bizarre”) claiming Simmons had undergone a sex change to become a woman. He had not. Simmons said he “has a legal right to insist that he not be portrayed as someone he is not” and “to be portrayed in a manner that is truthful.” Few reasonable people would disagree.
Simmons got screwed.
Check out the Orwellian Enquirer argument the judge bought hook, line and sinker: “Plaintiff has no right to suppress speech about him, even false speech, if it is not harmful to his reputation.” The judge ordered Simmons—the victim—to pay $130,000 to the Enquirer, which admits it lied about him. “Falsity is not enough” to prove defamation, said Enquirer attorney Kelli Sager.
The anti-SLAPP business has become shameless. Sager even defended the Daily Mail after it ran a fake-news story connecting First Lady Melania Trump to an escort agency.
The Los Angeles Times recently made a similar anything-goes argument in favor of its anti-SLAPP motion against me. In 2015, when the #1 shareholder of the Times’ parent company was the LAPD pension fund, the then-LAPD chief ordered the then-publisher, his political ally, to fire me and run a fake-news story describing me me as a liar and fabulist. After I proved it was the Times and not me who lied, Kelli Sager—the National Enquirer lawyer who also represents the upscale Los Angeles Times—told the court: “This is not a case about the quote-unquote truth.”
After I sued for defamation, the trial judge—in the same courthouse as the Simmons case—ruled that I—the victim—must pay the Times $330,000 in their legal fees even though I had shown they were liars and that they knew what they printed about me was untrue at the time. Like Simmons, we are appealing.
The Enquirer recently hit the Playboy model in the Trump case, Karen McDougal, with an anti-SLAPP motion that would force her to pay its legal fees.
For my money the most outrageous California example of abuse I’ve read recently is former Trump attorney and fixer Michael Cohen’s anti-SLAPP motion against Stormy Daniels. Cohen said Daniels lied about having an affair with Trump—which is plainly false.
Cohen has been sentenced to three years in prison for arranging hush-money payoffs to Karen McDougal and Stormy Daniels. Too bad he won’t be bunking with the publishers of the National Enquirer and The Los Angeles Times.