Mark Judge: the other casualty
And perhaps the more wounded one, at least in personal terms. After all, Kavanaugh still has a job, at least:
The Kavanaugh confirmation circus is over and the fighters have gone back to their corners, but not before drawing massive amounts of blood. The Kavanaughs were injured, but they now have Secret Service protection and secure employment for life. There’s someone else, though, who was beaten and bloodied and left for dead on the side of the road.
Mark Judge, the other man accused by Christine Blasey Ford, has lost his job and his home. He is raising money on a GoFundMe alternative site called Funding Morality and has received $48,549 to date. Judge is a cancer survivor and Catholic writer.
Where does he go to get his reputation back? Since Judge is a private citizen and not a public figure—at least, he wasn’t a public figure before the Kavanaugh battle—he could have a lawsuit against Christine Blasey Ford and several others.
It would be difficult to win, though, because he’d have to prove that the defendants’ statements about him were factually false, although the proof would only need to meet the “preponderance of evidence” standard rather than the “beyond a reasonable doubt” standard. The exact rules are on a state-by-state basis, and sometimes negligence is necessary as well.
In addition, I believe that Ford’s statements might come under a “qualified privilege” rule, which exempts defamatory statements made during legislative hearings. However, since Ford had originally made the defamatory statements under her own free will in a letter to legislators (see this; I’m almost certain that Mark Judge is the man whose name is replaced with “redacted” in Ford’s letter to Feinstein), rather than in a hearing, that exception might not hold.
It’s complicated, as you can see.
The beauty—if that’s the correct word—of Ford’s story is that it’s extremely difficult to prove or disprove, since it was about events so long ago. The named witnesses didn’t remember it, and could not corroborate it, but that’s not the same as proving it false. Let’s just say there’s zero evidence that it happened other than Ford’s say-so, and that she has been found to have made several misrepresentations of fact during her testimony.
Lawmakers such as Feinstein are immune from defamation prosecution for what they say on the Senate floor. and they may even be immune from prosecution for any statements they make in the course of their office. Feinstein was probably being extra-careful to completely protect herself when she redacted Judge’s name from the letter Ford wrote.
I wish Judge would sue—the discovery process could be fascinating—but I very much doubt he will. I don’t think he wants to draw any more attention to himself and I must say I cannot blame him. What an ordeal it’s already been! The fact that the lawsuit would probably be a difficult one to win, despite the fact that it’s likely that he was defamed, is a sobering thought because it points out that members of Congress and private citizens like Ford can say almost anything about anyone as long as it’s difficult to prove or disprove, and as long as the accusers can assert that they thought it was true, and particularly if they have some sort of legal privilege. Sexual misconduct allegations, especially older ones, are absolutely perfect for this task.
Neo, are you sure Judge would have to prove the statements false? If he can show the statements were harmful, I thought she’d have to prove them to be true e.g. truth as a defense.
PS: if, as I expect, it’s Dodgers/RedSox, I’ll be on your side. My wife, for some bizarre reason having to do with the 57 or 58 world series, is a Dodger’s fan.
Bill M:
If you follow the link I put with the words “are on” (here it is again), you’ll see the general rules about defamation.
Here’s a relevant quote, but if you’re interested I suggest you follow the link and read the whole thing:
Those are things that the plaintiff is required to prove, although just by the preponderance of evidence rather than beyond a reasonable doubt. Judge would be the plaintiff here.
In some states, negligence would be part of it as well.
I’m not an expert on defamation law today—particularly since my training was long ago—but I looked it up at several sites and found the same thing over and over, which is that the burden of proof is on the plaintiff in defamation suits.
For example, see this.
Bill M.,
I’m not an attorney, but my understanding is that in our judicial system the burden of proof always rests with the plaintiff (at least in theory). Thus I understand Neo’s point about proving a harmful statement true/false rather than just harmful.
Neo,
Members of congress protected by their own invention of immunity (?), private citizens protected by freedom of speech. The latter is not a perfect system, but as Churchill noted the worst system except for all the others.
I don’t think Judge should get involved in defamation suits. See E. Howard Hunt’s commentary on his adventures with defamation suits. In sum: after the first one, never again.
It is puzzling to me that in decades of living in Washington, Judge has never found an employer with satisfactory benefits in a town with large institutions all over the place.
Oscar Wilde would have some salient words about defamation suits.
One can really jump out of the pan and into the flames.
The funding site for Judge says he doesn’t want to disparage anyone nor talk to the media about all this. I am inclined to go there and make a donation.
“… a “qualified privilege” rule, which exempts defamatory statements made during legislative hearings.”
OK, but it wasn’t a legislative hearing. For all I know, the rule may apply to all hearings, but this one was a confirmation hearing. There was no statute on the table being debated.
I was a bit confused, then surprised when Mitch McConnell said a few weeks ago that, “We’re in the personnel business here.” Oh, … There are perhaps many hundreds of people that must pass muster in the Senate in a 4 year cycle on their way to the executive or judicial branches of gov. Kavanaugh was just one of those.
Yesterday I saw a screening of the movie “A Serious Man” by the Coen Brothers. The lead actor spoke. A main storyline in the movie was that a professor up for tenure was subjected to anonymous and uncorrobated allegations of moral turpitude. The Coen brothers’ real father was a professor at the University of Minnesota.
What happened to Kavanaugh and Judge is a travesty.
At least here in California, where Christine Blasey Ford resides, defamation lawsuits are very difficult for plaintiffs. This is because of the Anti-SLAPP statute (i.e., a statute that provides for a special motion to dismiss “strategic lawsuits against public participation”). Because almost all defamation arises out of someone’s exercising the right to freedom of speech, almost all defamation suits in California face anti-SLAPP motions. A defamation defendant gets a free shot to file an Anti-SLAPP motion, and when such a motion is filed, all discovery rights are suspended and the plaintiff must immediately establish to the court that there exists a probability that the plaintiff will win. If the defendant’s motion is granted, the court must award attorney fees in favor of defendant and against plaintiff. (Thus, Avenatti’s client “Stormy” has to pay for Trump’s legal fees.) If plaintiff succeeds in getting the motion denied, plaintiff gets bupkes, except for the right to proceed with the case. So, unless Judge has some excellent evidence either that Christine Blasey Ford lied about what happened at that purported party, or that he wasn’t at any party that was also attended by Christine Blasey Ford, I think it is highly unlikely that he would bring a lawsuit against her in California. I am not sure in what other states he would be able to get jurisdiction over her, or to what extent such other states have Anti-SLAPP statutes.
“if, as I expect, it’s Dodgers/RedSox”
Can they both lose? I grew up back East a Yankee fan, now live in the Bay Area where I root for the Giants. Really hoping the Brewers can pull it out so I have someone to root for.