September 29, 2006

Poll: Should Michelle Malkin Sue?
— Ace

Should Michelle Malkin Sue Over The Defamatory Photoshops Of Her Posted On Nick Denton's Sites?
Yes, "blogging" should not be synonymous with "utterly disburdened from rules of accuracy."
No, it sets a bad precedent.
Ken Layne is a cock-smoking douchetool.
Free polls from

Hey, this poll thing is pretty fun.

Although I suppose polling purists will knock the poll as being 1) self-selecting and 2) prejudicially worded with the whole "cock-smoking douchetool" thing.

I don't know. I think it's pretty accurate so far.


"Yes:" 33%

"No:" 5%

"Cock-Smoking Douchetool:" 62%

Background... Here.

Posted by: Ace at 11:57 AM | Comments (37)
Post contains 101 words, total size 2 kb.

1 I wanted to go with option "c" but it does not, strictly speaking, answer the question.

Posted by: Sobek at September 29, 2006 12:00 PM (6GK9U)

2 I wish the record to reflect that I also wanted to agree that Ken Layne is a cock smoking douchetool, but I opted to vote for the first option.

Posted by: HeartbreakRidge at September 29, 2006 12:00 PM (Xroyb)

3 I voted douchetool.

Posted by: z ryan at September 29, 2006 12:09 PM (zqgUK)

4 It's a trick question.  'A' & 'B' are merely opinions.  'C' is fact.

Oh crap, is that actionable?

Posted by: a4g at September 29, 2006 12:10 PM (+1GvR)

5 It really does set a bad precedent.  Really.

Posted by: Nick Denton at September 29, 2006 12:10 PM (oKQob)

6 Didn't vote yet, just wanted to add my two cents. Even if the photos were real, it's sad that Layne doesn't see the difference between acting like a harlot of British tv and wearing a bikini in you own dwelling. I guess its more of that liberal nuance

Posted by: Shivv at September 29, 2006 12:11 PM (ybQb9)

7 Looks like a Zogby poll.

Posted by: mesablue at September 29, 2006 12:14 PM (DzeyU)

8 Michelle should not sue. At least the photos I saw made her look pretty good. She even admitted that. What are her damages? It's bullshit but she called him on it. She should tell his employer before he does something worse (of course a college professor would never do that).

If some blogstalker pulls a Goldstein on Michelle or any other blogger--then hammer that person with civil and criminal actions.

Posted by: Joe at September 29, 2006 12:16 PM (+GRGs)

9 Actually I should have said any blogstalker that pulls a Frisch.

Posted by: Joe at September 29, 2006 12:18 PM (+GRGs)

10 Poll Host is pretty neat. It's the go-to site whenever the Innocent Bystanders want to vote on such important policy decisions as our Official Song, Official Chemical Element or even our Logo.
We didn't get to vote on Michael's Fishnet Pattern, however.

Posted by: Retired Geezer at September 29, 2006 12:18 PM (IjfHa)

11 I just voted. Wow. I never saw that result coming. What can I say? Shocked.

Utterly shocked. And slightly dismayed by the excessive profanity that I've never noticed before right now.

Posted by: Entropy at September 29, 2006 12:19 PM (Uh5fR)


<i>What are her damages? </i>

Again, false light defamation requires no actual harm to reputation, but there IS harm here, so you don't even have to go that route.

Tiger Woods' wife just had "naked pictures" of her published in some Irish magazine.  They were fake (of another woman entirely).

You're claiming no defamation lawsuit arises from that?

Even if she "looked good" in the fake pics?

Posted by: ace at September 29, 2006 12:20 PM (4qddO)

13 Wait. Ken Layne??

Who the hell is Ken Layne? I thought it said Ken Lay. Y'know, like Enron? Because non-sequitars are funny sometimes.

Oh well..I'm sure he's still a cock-smoking douchetool.

Posted by: at September 29, 2006 12:23 PM (Uh5fR)

14 Douchetool running away at 64% now.

I think "the people" have spoken and we have a genuine "mandate" here.

Posted by: Purple Avenger at September 29, 2006 12:54 PM (8uJYe)

15 Ace: Of course photographs can cause damages. Tiger Woods and his wife should sue (especially since it was in Ireland where libel laws really have some teeth and the photos were worse than Michelle's).

But in Michelle's case, given the photos were false but not completely offensive, she should just call the guy out as the asshole he is. She should humilate him as a liar.

Posted by: Joe at September 29, 2006 12:59 PM (+GRGs)

16 Nick Denton and Joe are correct. Do not sue. Whatever did happen with tort reform, anyway?

Michelle wins, so what? Proof that she didn't have a hot bod back who knows when? Meantime, it's open season on free speech.

Michelle loses would be the best. Should there be a suit. Which there won't be.

Posted by: Alear at September 29, 2006 01:00 PM (C87zU)

17 Ace, I don't think "false light defamation" is a cause of action -- it's false light privacy. Defamation necessarily includes "false light," because a defamatory statement is one that "tends to lower the subject in the eyes of the community, or subjects him to shame, ridicule or obliquy." (No cite, because I'm paraphrasing rather than quoting, but that's pretty close).

The damages have nothing to do with making her look like she's wearing a bikini, but with whether she is a hypocrite. One category of defamation per se damages is that which tends to injure you in your business or profession. If the message is "Michelle Malkin is untrustworthy," and that tends to hurt her readership/viewership, she's got her damages nailed down.

I guarantee she's a public figure for First Amendment purposes, which means she needs to satisfy the actual malice standard -- knowing falsehood or reckless disregard for the truth. Personally, I'm not sure she meets either one, although it's certainly a close enough call to beat summary judgment.

You're right about parody -- Falwell can't sue Hustler for a parody, which was in fact stamped with the words "this is a parody" or something to that effect. It was a charicature, and could not possibly be viewed in context as an assertion of fact. Malkin's pic is different: it was asserted as a fact, which led to the author's conclusion: Malkin is a hypocrite. No reasonable reading of the post allows the author to claim that the picture is a parody, and yet Malkin is still a hypocrite.

Posted by: Sobek at September 29, 2006 01:05 PM (6GK9U)

18 "Proof that she didn't have a hot bod back who knows when?"

Proof that she isn't spouting off about scantily clad pop stars while wearing small bikinis. In other words, proof she is not a hypocrite (at least in this case), as she was specifically charged.

There's no way she'll sue -- makes her look kind of petty, I think. And I don't see the allegation as particularly outrageous. If a liberal got sued every time he or she called someone a hypocrite, I'd do defamation law exclusively, and be a rich man.

Posted by: Sobek at September 29, 2006 01:09 PM (6GK9U)


Malkin says that she thinks the same photo was used between the two photos shown? No way. That was a strange claim to make.

It is, however very obviously photoshopped. That it is not instantly recognized as such says more about the Prof. than a stupid claim he made.

Sobek, if I read you right, you are saying that because the post by the Prof. is intended to diminish her legitimacy, and uses false evidence for the claim, it is actionable? Does it matter if it is merely proven that he is an idiot who can't tell an obvious fake? Because there are many statements made on the tubes that fall under these knee-jerk assumptions

Posted by: Tom M at September 29, 2006 01:17 PM (d6bNm)

20 Also, is the situation different if it is picked up by a media outlet that actually reaches human beings?

Posted by: Tom M at September 29, 2006 01:19 PM (d6bNm)

21 "Does it matter if it is merely proven that he is an idiot who can't tell an obvious fake?"

Yes. The "reckless disregard" part is subjective, so if the guy wants to testify under oath that he is a moron, I doubt Malkin could produce the evidence to refute him.

"Also, is the situation different if it is picked up by a media outlet that actually reaches human beings?"

Yes and no. Defamation requires publication to a third party -- even one. But the third party must be a human being, and whether Michelle can prove that actual humans read that blog is anybody's guess.

Posted by: Sobek at September 29, 2006 01:49 PM (6GK9U)


I voted No.

I could get down with #3 also, but why should we descend to their level?  Just because those children are entertaining themselves by being crude doesn't mean we have to descend to their level.

Personally, I can't even pretend to have the level of brain damage that it must require to act like they do all the time.  Such being the case, I refuse to participate in a stupidity contest with them.  They've got me way outgunned on that one.



Posted by: jefferson101 at September 29, 2006 02:19 PM (Ovs2t)

23 She should definitely sue. 

I'd be willing to help ascertain the identities and phone numbers of her spring break "friends" during discovery.

Posted by: pbrown at September 29, 2006 02:21 PM (O+9Yg)

24 ... and Wonkette is a semen-gargling crack whore

Posted by: Sam Kinison at September 29, 2006 02:44 PM (J90gM)

25 Again, false light defamation requires no actual harm to reputation, but there IS harm here, so you don't even have to go that route.

Source, please? "Again" is not a source. Besides, it's not just a matter of proving that there was harm, even if it were clear that there was any. You also have to show how much. In dollars. How many dollars has/will Michelle Malkin lose/lost on account of a stupid, unconvincing Photoshop that falsely implies that she ... uh ... looks good in a bikini ... no wait, truth is a defense to that one ... er ... is a few inches taller than she really is?!

Get real.

Posted by: Xrlq at September 29, 2006 04:30 PM (SDhNB)

26 "Besides, it's not just a matter of proving that there was harm, even if it were clear that there was any. You also have to show how much. In dollars."

That last part is never true. No one makes you quantify losses with precision, you just have to show evidence of pecuniary damages, and the jury can weigh the evidence and slap a dollar amount on it.

As to showing how much, that is sometimes true. But in defamation cases, there are four traditional categories of defamation per se. One of them is defamation that tend to damage you in your business or profession. You can get a jury award without offering a single shred of evidence on damages, because it is legally presumed. (Of course, you can get more if you offer persuasive evidence).

But I can't imagine Malkin would sue for the money. It's not worth the time or legal fees, and you're right -- she probably hasn't been damaged much anyway. But you can sue for the vindication. Not saying she should, just that she could. And it would serve as a stern warning to others who are a bit reckless with the truth.

Posted by: Sobek at September 29, 2006 06:46 PM (dmsUZ)

27 Exactly what Xrlq said. Even if it is offensive and meant to maliciously harm Malkin, if she sees no clearly discernable monetary damages as a result of the photoshopping, the lawsuit is not meritorious. Sure, she can sue Nick Denton's ass off as the employer, but she'll only waste her money doing so.

Besides, I do believe Denton keeps his employees on a very limited contract basis and as such, what they did probably won't fall under any scope of employment like a regular employer who employs on an indefinite basis and gives benefits to his workers.

Finally, those photoshops are obviously not meant as fact because they don't look even remotely real. The swimsuit body is far too large for Malkin's head shot, and that head shot is used for another photoshop.

Ignore it, Malkin. Just be happy that you're important enough for other people to make fun of.

Posted by: agent bedhead at September 29, 2006 06:52 PM (xV63t)

28 Someone puts a funny photoshop picture of Malkin up and now all of the "frivilous lawsuit hating" right wingers are ready for her to lawyer up. This is hilarious. First she has about as much sense of humor as corpse and second if you think she could win then you have zero knowledge of the libel laws in the US. Stopping taking yourselves so damn seriously right wingers.

Posted by: Derrick at September 29, 2006 09:05 PM (xp1/O)

29 I wish there was a choice to sue the cock smoking douche tool!

Posted by: Aristotle at September 29, 2006 10:15 PM (36RCa)

30 Someone puts a funny photoshop picture of Malkin

Well, thats the story now, after they talked to their lawyers.

If that is the true story, then they are not only sexist tools, but stupid humorless sexist tools. "Malkin said the culture demeans pre-teen girls, here's a photoshop of her in a swimsuit to prove she's hypocritical."

...the hell, how does a fake picture show hypocracy?

Posted by: monkeyboy at September 30, 2006 02:16 AM (/wKjp)

31 Social networking site MySpace is to block users from uploading copyrighted music to its pages...

Posted by: Austen Bradshaw at November 12, 2006 07:28 AM (MMB4z)

32 The Rolling Stones postpone a show in the US to allow singer Sir Mick Jagger time to rest his voice...

Posted by: Sam Irwin at November 12, 2006 01:23 PM (EPgxM)

33 Doctor Who takes three prizes at the National Television Awards in a repeat of its success last year...

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