BEZOS / AMI PART ONE — CRIMINAL LAW AND LIBEL LAW INTERSECT

The Jeff Bezos / National Enquirer battle is a complex stew of legal issues, political calculations and below the belt selfies.  And it’s not easy to figure out where I land on it.

One issue is whether the communications between American Media Inc. (the owner of the National Enquirer) and Bezos over the use of private text messages and photos related to Bezos’ extramarital affair is criminal extortion.  On the one hand, it seems like it may be.  “Give me what I want or I’ll publish embarrassing photos” sounds like extortion.

And in Ohio (and I know Ohio law won’t apply, but it’s a useful example) the law says:

“No person, with purpose to obtain any valuable thing or valuable benefit or to induce another to do an unlawful act, shall do any of the following:

(5) Expose or threaten to expose any matter tending to subject any person to hatred, contempt, or ridicule, or to damage any person’s personal or business repute, or to impair any person’s credit.”

So that sure sounds like what is happening here.

But it may be more complicated than that.  AMI is claiming that it may have a libel claim against Bezos based on his comment that AMI’s prior coverage of his affair was politically motivated.  And it’s proposal not to publish the as yet unpublished texts and photos is just part of the overall agreement.

Lawsuits get settled all the time, and it’s not uncommon for one party to settle to avoid the potential embarrassment that may result from the  litigation. But we don’t typically consider that extortion.

So what to make of this scenario?  One question that pops into my mind is whether AMI’s libel claim has any merit.  I’m not a prosecutor, but I can see an argument that the alleged libel claim is so frivolous that it is obviously a smoke screen for an extortion attempt.  And if there’s no merit to the libel claim, then AMI is offering nothing other than not publishing than embarrassing material to get what it wants.

And while I’m not a prosecutor, I am a libel lawyer.  My experience there tells me that AMI has no viable claim for libel.  To be libelous a statement has to be verifiably false.  That means it is objectively false.  If I say Joey Votto had 110 walks last year, that would be objectively false.  He had 108.  But if I say Votto walks too much, that’s not objectively true or false.  What is too much? Is it bad to walk?  Could anyone walk too many times?

The statement about walking too much is opinion.  And because Votto can’t prove that it’s false, he couldn’t sue me over it.  Bezos’ statement about the National Enquirer’s political motivation sounds more like a non-verifiable opinion than an objective fact.  So we’ll see if that impacts any decisions by prosecutors.