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NO-BRAINER

Ed Whelan, Judge Kavanaugh’s Defender, Just Committed Defamation

But unless Whelan’s target—also a Kavanaugh backer—sues, he’s unlikely to face any consequences.

Jay Michaelson9.21.18 6:08 AM ET

Editor’s note: Early Friday, shortly after Fox & Friends aired his conspiracy theory about Christine Blasey Ford’s attempted-rape allegations, Ed Whelan issued an apology on Twitter, posting: “I made an appalling and inexcusable mistake of judgment in posting the tweet thread in a way that identified Kavanaugh's Georgetown Prep classmate. I take full responsibility for that mistake, and I deeply apologize for it. I realize that does not undo the mistake.”

Thursday evening, longtime conservative activist Ed Whelan put on his Sherlock Holmes cap and tweeted a wild series of conjectures that another man, not Brett Kavanaugh, assaulted Christine Blasey Ford 36 years ago.

Astonishingly, Whelan also tweeted the name, former address, photographs, and Facebook posts of this individual, who is a private citizen. Immediately, condemnations rained down on the once-lionized activist (a former clerk to Justice Antonin Scalia and head of the right-wing Ethics and Public Policy Center) from all quarters: conservative and liberal, public and private. Immediately, some wondered whether his tweets constitute defamation.

Answer: Unless Whelan’s suspect is guilty, they sure do.

Defamation is defined under common law as any false statement of fact that exposes a person to hatred or ridicule, or which might harm the victim’s business or trade. Under federal law, it means statements that are “false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.” (Libel refers to written defamatory statements; slander to spoken ones. Tweets count as written.)  

Whelan’s statement easily qualifies. In fact, accusing someone of a criminal offense is so egregious that it is “defamation per se,” meaning, it’s always considered defamatory. (See the Restatement (2d) of Torts, §§ 570-574.) You don’t have to prove emotional distress or reputational harm—if you’re wrongly accused of sexual assault, you’ve been defamed.

Moreover, while courts have made it harder to prove defamation against public figures, the individual Whelan named is an ordinary private citizen. All he would have to do is show that Whelan acted negligently in posting his tweetstorm.

Which is easy as pie. First, there was no reason Whelan needed to post the person’s name in the first place. He could have conveyed his entire cockamamie theory without it.

Second, it’s 2018. Everyone knows that when you tweet out someone’s name, you’re putting them in danger—just ask Marcel Fontaine, whom Alex Jones wrongly accused of being the Parkland high-school shooter, and who is now suing Jones for over $1 million. Or ask the owner of Comet Ping-Pong pizza, the target of the “Pizzagate” conspiracy theory.

In 2018, it is the epitome of negligence to throw someone’s name on Twitter, accuse him of sexual assault, and leave the rest up to the mob.

Finally, Whelan’s theory is, itself, so contrived that it cannot possibly justify posting the name of a private citizen. Based on Ford’s statement that the assault took place “not far” from a particular country club, Whelan found a house only half a mile from the club, where, 36 years ago, a person who looks a bit like Brett Kavanaugh, and who is friends with Kavanaugh’s friends, once lived. What’s more, Whelan pulled some floorplans from Zillow to show that the layout of the house conforms to Ford’s account. Bingo!

Of course, that’s probably true of a hundred houses “not far” from the country club. Just as there were probably a dozen other white dudes with brown hair and football-player physiques in Kavanaugh’s high-school class. But like any good conspiracy theorist, Whelan connects the dots in the line he wants to draw, oblivious to the fact that there are hundreds of other dots that lead in other directions.

More than anything, Whelan’s bizarre rant shows how the lunatic logic of conspiracy theories has now become part of the Trumpist Right. After all, climate change is a Chinese hoax, the Mueller investigation is a partisan witch hunt, there were 3 million fraudulent votes in the 2016 election, and the Democratic National Committee could’ve been hacked by anyone. What’s wrong with a little CSI Bethesda-type sleuthing?

Defamation, is what.

And, no, Whelan’s lame attempt at self-exculpation—he tweeted “I therefore do not state, imply, insinuate that [the individual] or anyone committed the sexual assault that Ford alleges”—is laughable. Just a couple of tweets earlier, he placed his target at the scene of the crime and said he matched the physical description of the assailant. You don’t get to shout “fire” in a crowded theater, and then escape liability because you said you didn’t.

Still, there’s no guarantee that Whelan will face legal liability. Defamation is a civil cause of action, not usually a criminal one—although Virginia is one of the 17 states with criminal defamation laws, so if Whelan tapped his tweets from Virginia, he could be charged with a crime.

Most likely, though, Whelan’s target would have to sue him—which seems unlikely, given that he signed a letter in support of Kavanaugh and is indeed friends with Kavanaugh’s friend and fellow accused, Mike Judge. Basically, he and Whelan are on the same team, even if Whelan just knifed him in the back.

It’s not even clear that Whelan will get thrown off of Twitter.

Twitter’s rules state, among other things, that “You may not use our service for any unlawful purposes or in furtherance of illegal activities. By using Twitter, you agree to comply with all applicable laws governing your online conduct and content.”

It certainly seems like Whelan used Twitter for an unlawful purpose: to commit defamation. But if that defamation is not proven in a court of law—including proving negligence—it’s not clear that Twitter really has grounds to ban him. After all, Twitter can’t prove that Whelan’s statements are false, and without falsity, there’s no defamation.

In other words, Whelan is likely to get off scot-free.

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