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« Why the National Media Ignores The 1Point Scandal | Main | NCSL Posts Audio of Nashville Sessions » October 16, 2006Fletcher & FoleyOne of Tennessee's best-known brass-knuckles political campaign advertising consultants on the Democratic side has threatened a Republican blogger with legal action after she wrote this blog entry questioning whether the consultant or his firm might have had any role in the release of the now-infamous emails between ex-Congressman Mark Foley and some congressional pages. Bill Fletcher, the most high-profile partner in Fletcher Rowley Chao Riddle Inc., also admitted in his threatening email to blogger Terry Frank that if he had had copies of those emails from Rep. Foley to various congressional pages, his next move would have been to use them in a campaign ad against Foley. Fletcher sent the email to Frank, a Knoxville-based conservative columnist, radio host and blogger after she published this post, an opinion/analysis piece which asked whether Fletcher and/or his firm may have been involved in the release of the Foley emails given that Foley's Democratic opponent is Fletcher's client. Frank's piece also noted Fletcher's reputation for negative campaigning, dirt-digging and mud-slinging, and then wonders aloud if Fletcher might have had the Foley emails before they became public, releasing them late in the campaign for maximum political effect, rather than sooner - which might have put an end to Foley's shenanigans sooner. I reviewed Fletcher's email to Frank after she emailed me regarding Fletcher's implied threat and demand that she not publish it. Fletcher's email raises some troubling questions itself. Frank's blog post was an opinion piece, but Fletcher seems to threaten her with a libel suit, as if he does not understand that opinion is protected by the First Amendment. Frank's writing may be a little over the top - there is, after all, no hard and direct evidence Fletcher or his firm were involved in the anonymous release of the Foley emails - but it's still opinion, which isn't actionable under libel, slander or defamation law. In her blog post, Frank notes the facts we do know about the release of the emails, notes that Fletcher is Foley's opponent's campaign consultant, reminds readers of Fletcher's self-encouraged reputation for digging up dirt and using it in campaigns, and wonders aloud if Fletcher had anything to do with the release of the Foley emails. She then urges that the questions be asked and answered. The freedom to express one's opinions and ask hard questions of our politicians and the consultants that run their campaigns is at the very core of our democracy, yet Fletcher urges Frank to "be careful," hints at legal action, and concludes threateningly that Frank should "be careful. You are in way over your head." But Frank isn't in way over her head. She's on solid legal ground. And Fletcher ought to know that the Media Bloggers Association, of which I am a founding board member, aggressively defends bloggers' First Amendment rights against bullying tactics such as those threatened by Fletcher. Perhaps Fletcher ought to first examine his own heart in the matter Whether or not he or his firm were involved in the release of the Foley emails, Fletcher's email to Frank makes it clear that if he had come into possession of the emails, his first instinct would have been to use them as a political hammer. Wrote Fletcher: And you can bet if I had known the depth of Foley's depravity, I would have simply made a spot about it."I would have simply made a spot about it." Not, "I would have quietly turned the emails over to law enforcement authorities for a proper investigation in order to protect the pages." Fletcher's first instinct, it appears, would have been to use the emails for political gain, rather than turn them over to the proper authorities to protect the under-aged pages. Which, come to think of it, is not very much different than the scenario Frank speculated about in the first place. Update: I gave Fletcher advance notice that I was about to publish this commentary, and he emailed the following: I didn't give her permission to publish that and I'm not giving you permission either. That was a private communication ... intended to stay private.But of course I don't need Fletcher's permission to quote from his email to Frank any more than ABC News needed permission to publish Foley's emails and instant messages, which no doubt also were intended as "private communication...intended to stay private." Most of the time, I respect an emailers' request for non-publication, but in this case Fletcher's email crossed the line, targeting a blogger who wrote a political opinion article with a naked attempt to intimidate her via not-so-veiled threats of legal action. Given that the threat came from a high-profile political consultant whose clients in Tennessee include former state Sen. Bob Rochelle and others, that's news. Fletcher - and anyone else who thinks threatening baseless lawsuits is a good way to intimidate opposition bloggers into silence - would do well to Google for news stories about Warren Kremer Paino Advertising and Maine political blogger Lance Dutson, and learn how Warren Kremer Paino greatly damaged its own reputation by launching a baseless lawsuit against Dutson in an attempt to silence him. The Media Bloggers Association played the lead role in organizing Dutson's successful legal defense and media counter-attack that sent Warren Kremer Paino running for the hills in just a few days. You can learn more about the organization here. Update: Bad news for Fletch: News of his attempt to intimidate a blogger via threats of baseless legal action have gone national. Which, as Glenn Reynolds notes, usually backfires. Just ask Warren Kremer Paino Advertising... The story is also being picked up by other online media, including the Knoxville News Sentinel's blog, and Pajamas Media. Update: Here is a PDF printout of Fletcher's email to Terry Frank, as forwarded to me. Posted in Campaign Season
Comments
However, I won't be pushed around by you self-important conservative wannabe hack bloggers. Proceed with all due caution. Umm, Bill, what if this last statement isn't referring to legal action but physical action? I'm sure it's not, but can you be? Posted by: Rick Forman at October 16, 2006 10:28 AMWow. I hope he keeps writing people emails. That thugly stuff is dynamite! Posted by: tree hugging sister at October 16, 2006 11:34 AMSomeone needs to remind this fool that anything in the public domain is fair game. Email is like the written word - once it's out there, it's in the public record. Posted by: Russ at October 16, 2006 11:44 AMThese comments remind me of Deb Frisch, and her meltdown over at Protein Wisdom Blog. You made a mistake in this sentence, "Foley's first instinct, it appears, would have been to use the emails for political gain, rather than turn them over to the proper authorities to protect the under-aged pages. " I think you mean Fletcher, no Foley.... Posted by: J at October 16, 2006 11:59 AMFoley's first instinct, it appears, ... about the 11th paragraph. I think you mean Fletcher here. Just a heads up. Posted by: jp at October 16, 2006 12:01 PMHowever, I won't be pushed around by you self-important conservative wannabe hack bloggers. Proceed with all due caution. Well my goodness, aren't we getting testy! They always lash out like that when you put their feet to the fire. Did he really think that kind of reply was going to make it LESS likely that his emails get published? Geez, some people just don't get it. Keep up the great work Bill, I'm sending this to a few dozen friends. Daylight is the best cure for "Fletch"'s sort of political thugery. I wonder if it comes as part of Fletcher Rowley Chao Riddle Inc's standard consulting service package or if you have to pay extra for that. :/ Foley's first instinct, it appears, would have been to use the emails for political gain... I believe you meant "Fletcher", not "Foley". respectfully, "...opinion, which isn't actionable under libel, slander or defamation law." That's not quite correct. If you publish an opinion which implies on its face that it has some factual or evidentiary basis (as opposed to hyperbole or something obviously speculative), then that opinion is actionable (if all other elements of the tort of defamation are met.) See Milkovich v. Lorain Journal Co. (1990). And that's as it should be. If I said "If have sufficient evidence to arrive at the well-founded opinion that Mr. X murdered someone," Mr. X should be able to sue. That's not to make any judgment as to whether the statements you're discussing are actionable. Posted by: Brian at October 16, 2006 12:48 PMEmail is like the written word - once it's out there, it's in the public record. No, e-mail is protected by copyright law like anything else written. An e-mail sent to a blogger without a disclaimer can raise questions about whether or not permission to reprint was implicitly given, but it's far too simplistic to say "it's written down, so it's public record." Posted by: Stephen at October 16, 2006 12:58 PMA couple factoids that may help people understand First Amendment law. 1) A statement of fact embeded in an opinion article is still a statement of fact and is just as actionable as if it appeared in a news story. 2) The consultant's claim that he is a private citizen is doubtful for purposes of libel law. As a campaign consultant, at the very least he is a public figure for the purpose of articles written about political campaigns. So statements about him are more protected than some schmo off the street. Won't be pushed around by the bloggers, huh? Famous last words. Posted by: Donna Locke at October 16, 2006 12:59 PMRe the point made by myself and David Mastio: I should have included the current example of Steven Hatfill v. Nick Kristoff & the New York Times, triggered when Kristoff implied, in an opinion piece, that Hatfill was the anthrax terrorist. Posted by: Brian at October 16, 2006 1:14 PMSeveral commenters above noted I wrote "Foley" in one place where I meant "Fletcher." It has been corrected. Also, Mastio is right when he comments that "A statement of fact embeded in an opinion article is still a statement of fact and is just as actionable as if it appeared in a news story." Terry Frank's piece doesn't state as "fact" that Fletcher had the Foley emails, she merely says that, in her opinion, judging from the known facts and Fletcher's reputation, she believes it is "likely" that he did. Mastio also is correct above where he so well explains that Fletcher would not be consider a "private citizen" if he sued. In sum and total, Fletcher's email to Frank bespeaks either a woeful lack of understanding of the First Amendment and libel law, or a sorry attempt to intimidate a political opponent via empty threats. "No, e-mail is protected by copyright law like anything else written. An e-mail sent to a blogger without a disclaimer can raise questions about whether or not permission to reprint was implicitly given, but it's far too simplistic to say "it's written down, so it's public record." Um, sorry - go back and re-read copyright law. Such a statement only applies to transmitted ideas intended for distribution at a later date. Either party is permitted to share what was said so long as the words and ideas are not passed off as their own. Posted by: Russ at October 16, 2006 1:40 PMCheck out 18 USC 241: it looks like you could make Fletcher Rowley Chao Riddle Inc. sweat a little if you wanted to. Posted by: PersonFromPorlock at October 16, 2006 1:55 PMAnyone else find it ironic that all of Fletcher's protestations about libelling a "private citizen" being followed by his huge corporate letterhead, predominantly featuring his name? That Frank was offering opinion about Fletcher's possible professional role in a high-profile news story is just icing on the cake. Posted by: submandave at October 16, 2006 2:01 PMDefamation law: Opinion is usually protected unless you present something as fact that is not, asserting or implying you have direct, checkable evidence to back up the "fact." A conclusion you draw based on reasonable, flimsy, or even no evidence is usually protected speech, but you'd be in trouble if you present a damaging conclusion as fact while asserting or implying backing evidence. But even in that, the law allows broad latitude. For example, a person can get away with calling another a racist when the accused is not one, because "racist" is a hazy word, subject to personal definition and opinion. But falsely asserting or implying a person is affiliated with a "hate group" can be actionable, because in our society, "hate group" can be defined. So there are nuances. When in doubt, use satire. Satire and parody are almost always protected speech. Posted by: Donna Locke at October 16, 2006 2:04 PMFletcher has an inflated opinion of himself that needs puncturing immediately. Posted by: Whazzit 2 You at October 16, 2006 2:13 PMFrom the post in question: "Did Bill Fletcher endanger children while waiting for just the right moment to break the story? It looks likely." That is not an opinion, that is at the very least an implied fact. Just like the Kristoff case refered to in a comment above. Posted by: Dan at October 16, 2006 3:15 PMClassic! You want to be able to write irresponsibly and suffer no consequences! That's good material, coming from a "personal responsiblity" conservative. Dude, libel is not protected speech. Ask your favorite corporate lawyer. They sue unions all the time for making assertions that they can't prove. (They make big money doing it, too.) Of course, that's corporations protecting their good name, so that's OK... Posted by: DcoAmazing at October 16, 2006 3:37 PMPerhaps readers would like to express their opinion directly to this Fletcher guy. The email is fletcher@frcconsulting.biz Posted by: Sparky at October 16, 2006 3:53 PMI would love - LOVE - to see Fletcher file a claim for either libel or copyright infringement (!) in court. Of course, he would have to file it himself, because I doubt that any respectable lawyer would do so for him: any such claim, based on the fact pattern available here, would be 12(b)(6)'d out of the system so fast that plaintiff's counsel's head would spin...and that's before Frank or Hobbs had their counsel motion for Rule 11 sanctions for filing a frivolous lawsuit. (Note - unfamiliar w/Tennessee courts, but I would imagine they hew closely to the Federal Rules of Civil Procedure on these two points.) Posted by: anonymous lawyer at October 16, 2006 3:57 PMFletcher has been known for years now as a mean spirited hatchet man for the Tennessee Democrat party so this doesnt shock me. He was the consultant behind Chris Crider's Democrat opponent two years ago. One Democrat over there in Trenton told me the worst mistake Harris Jones made was hiring Fletcher. He said Fletcher took a beloved local sports hero who battled leukemia and turned him into a younger version of himself(which was a low life you know what). Jones spread all kinds of nasty and crude rumors about Crider two years ago...it was pathetic how bad that race got. Posted by: don at October 16, 2006 4:15 PMOkay everybody, how about this? Doesn't libel and slander, as a charge, also have to substantially injure a person? Saying that someone petted a cat while walking on a sidewalk may be false, but since saying such thing about a person does not injure person's reputation, no such case for suing someone over such a claim would succeed. Is that right? Here's my point...does this consultant do the kinds of things like holding on to damaging emails for later release? Is he know for dirty tricks? Has be bragged about being slick like this? If so, what would his case be? That he was merely lied about? So what?! It's not like he wouldn't do this kind of stuff if he had the chance. Does he have this kind of rep? Posted by: Miller Smith at October 16, 2006 5:35 PMIf he takes it to court, I have just two words: discovery process. Posted by: Lou Minatti at October 16, 2006 9:07 PMThere will be no lawsuit. How do I know? Because the rules of discovery. Mr. Fletcher is bluffing. The pompous always bluff. Posted by: # 9 at October 16, 2006 9:51 PMDan - ""Did Bill Fletcher endanger children while waiting for just the right moment to break the story? It looks likely." That is not an opinion, that is at the very least an implied fact. Just like the Kristoff case refered to in a comment above." I disagree, and I would give you that argument and take Bill & Terry's in court. I think you are misapplying Kristoff. DCoAmazing - "Dude, libel is not protected speech." Uh, yeah, "dude," what we're talking about here is not libel. Cheers, Rob Good to see dems standing up for themselves. Whether he would have released to media or police the result would have been one less Foley. Posted by: Red state dem at October 17, 2006 12:38 PMRed state dem, Of course you miss the point entirely. If Fletcher holds information that may become criminal evidence, and instead of submitting it to legal authorities for investigation he waits for the best political moment to unleash said evidence, it is a crime. Even if the information is not deemed that significant from a legal standpoint, the entire issue of the Foley scandal is the potential damage to underaged pages. Fletcher, if he held such information for the opportunity to wreak maximum damage on the Republicans, abetted any damage done to those underaged pages. That may not be criminal, pending evidence, but it sure is despicable. If he did such. Oh yes, a perfect example of a dem standing up for himself. More briefly, a perfect example of a dem. Posted by: SanDogSailor at October 17, 2006 5:49 PM |
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