The GOP Search For The Next Hulk Hogan

Donald Trump, Sarah Palin and others use dubious defamation allegations to hammer the "mainstream media."

Sarah Palin (by Gage Skidmore via Wikimedia)

There’s been a funny pattern in the past few months. Prominent GOP political figures keep filing defamation suits that keep getting kicked out of court.

Most recently, Carter Page, a former Trump campaign volunteer and investor in the Russian energy industry, sued Yahoo and the Huffington Post, claiming they falsely reported that he was under investigation by U.S. intelligence agencies regarding his ties to the Kremlin. The suit is odd, to say the least, since Page has been widely reported to be under investigation since at least 2014. Page, who revealingly represents himself in the lawsuit, seems intent on having his day in court.

Page should hope his lawsuit fares better than that of Sarah Palin, who sued the New York Times in June 2017 claiming that an editorial incorrectly linked the 2011 shooting of Arizona Congresswoman Gabby Giffords to an electoral map on Palin’s website featuring several electoral districts in crosshairs. The federal district court judge tossed the case in late August, holding that even if Palin’s complaint were entirely correct, it would still not clear the very high bar for establishing defamation of a public figure.

But even Palin did better than California Republican Congressman Darrell Issa, who recently sued his 2016 congressional opponent for defamation, claiming a campaign ad falsely accused Issa of using his official position to enrich himself. Issa not only lost the defamation suit, but he was also ordered to reimburse his opponent for more than $45,000 in costs and legal fees.

Even the ever-litigious President Trump has a history of playing the role of defamation plaintiff. He sued an architectural critic for panning his design proposal for a new skyscraper, which was dismissed. He sued the author of a biography about him for claiming Trump was only a millionaire instead of a billionaire. That suit was also tossed. When a victim of the Trump University scam sued him, Trump countersued that student for defamation for $1,000,000, a claim that was (wait for it) dismissed by District Judge Gonzalo Curiel, who Trump later accused of being biased against him due to his Mexican heritage. It’s little wonder that Trump infamously promised on the campaign trail that he would “open up” libel laws in the U.S.A. so that tragic victims such as himself could go after the New York Times and Washington Post to “sue them and win lots of money.” Maybe if the laws were changed he could finally win a case.

It’s downright strange to see so many representatives of the party of tort reform bringing defamation claims. If there’s any type of case that’s going to gum up the legal system, cost both sides a metric boatload of money, and probably not result in a verdict for the plaintiff, it’s a defamation case. Thanks to the broad protections of speech afforded by the First Amendment, defamation cases are notoriously hard to pursue in the United States. Merely saying something incorrect about someone, even negligently, isn’t generally enough. Public figures like Page, Palin, and Trump need to prove that the party who made the false statement did so knowingly and maliciously, or at least had serious doubts about the truth of their statement and published it anyway. It’s tough to prove your case when “I was wrong but I didn’t think I was wrong” is a viable defense, which is why so many defamation claims get knocked out on an initial motion to dismiss, without even proceeding to discovery.

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Even if they get past a motion to dismiss, a defamation plaintiff still has to endure the long, expensive, invasive process of discovery. Should they survive that, and survive motions for summary judgment at the end of discovery, and then convince a jury that they’ve proven their case, they still have to prove that the claim actually caused them damages. There are a lot of ways a defamation case can go off the rails. Everything has to go just right for one to pan out.

So if the odds of winning are perilously low, and to even get to court you open yourself up to often intensely personal discovery on every aspect of the subjects in question, why are these politicians taking on an expensive, invasive fight that they’re probably not going to win?

The answer, as with so many things in life, is Hulk Hogan. Not the “train, say your prayers, eat your vitamins” Hulk Hogan of the 80s who overcame the odds with nothing but the adoration of the fans and his 26” pythons. No, they’re hoping to become the Hulk Hogan that sued media giant Gawker into oblivion in 2016 based on Gawker’s publication of excerpts of a sex tape featuring the former WWE Champion. Hogan’s legal team was funded by Peter Thiel, billionaire founder of Paypal, who had a personal ax to grind with Gawker. That legal team hit the jackpot, obtaining a $115 million verdict, and later settled for about a third of that amount during the appellate process. Nevertheless, the initial verdict was enough to shut Gawker down in its entirety.

In this context, all these defamation claims against mainstream media outlets start to make a lot more sense. The far-right wing of the GOP has spent the past two decades declaring war on the “mainstream media,” convincing its constituency (and its politicians) that traditional media organs like the New York Times and Washington Post are hopelessly biased at best, and outright fraudulent at worst, and as such should be treated as the enemy. If that’s the case, why not spend a few thousand dollars to launch a defamation claim? All it takes is one case to break your way, and you might be the hero who takes down a media giant.

In August, after the horrible attack on protesters and bystanders in Charlottesville, I wrote in this column that the lawsuits that attack had spawned might cripple the organizational arm of the neo-Nazi movement. The tort system is a double-edged sword, though, and is being used to lay siege to the fundamental concept of an independent news media. Even if the big players like the New York Times and the Huffington Post can afford pricey defamation defense lawyers, a hometown daily newspaper can’t (if that hometown daily even exists anymore).

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If Trump, Palin, and their ilk make it known that they’re willing to throw away tens of thousands of dollars on a defamation case they know they’ll lose, the news teams that can’t afford to pay for defending against that lawsuit may start softening their coverage just to avoid drawing fire.

By taking a page out of a pro wrestler’s playbook, certain members of the GOP may have found a way to fix the fight to their advantage.


James Goodnow

James Goodnow is an attorney, author, commentator and Above the Law columnist. He is a graduate of Harvard Law School and Santa Clara University. He regularly appears in the national broadcast and print media, including CNN, HLN, Forbes and more. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.