Read on Twitter
I have something delightful to discuss.
Michael Avenatti has sued Fox News, Sean Hannity, Laura Ingraham, Maria Bartiromo, Howard Kurtz, and other Fox people for defamation in Delaware.
No. Really.
Sit down.
/1
Michael Avenatti has sued Fox News, Sean Hannity, Laura Ingraham, Maria Bartiromo, Howard Kurtz, and other Fox people for defamation in Delaware.
No. Really.
Sit down.
/1
/2 The complaint, filed yesterday in state court in Delaware, concerns November 2018 Fox coverage surrounding Avenatti's arrest in Los Angeles, an arrest that never led to charges. Avenatti blamed Jacob Wohl for false descriptions of the arrest. https://www.vanityfair.com/news/2018/11/michael-avenatti-jacob-wohl-arrest
/3 The complaint describes Avenatti's career in glowing terms, though the description terminates, for some reason, in November 2018. Did anything important happen after that? Do I have a vague memory of further pertinent legal experience? Huh.
/4 The complaint also describes Fox, at length and quite accurately, as a shithole mouthpiece for the President. Avenatti's gripe, shorn of the irrelevant parts, is that Fox and its personalities falsely described his arrest as a domestic violence incident against his ex.
/5 Avenatti also complains quite a bit about Fox criticizing him as a lawyer and a media whore (with sincere apologies to sex workers for the use of the term) and a general freak, but he carefully doesn't base the defamation claim on those parts.
/6 Let's discuss the merits of the complaint. It's not absolutely terrible. It's not as bad as a Trump defamation threat or lawsuit, and nowhere near as bad as a Trump election lawsuit. But it's not great.
/7 The first thing to note is Avenatti's conspicuous vagueness about the arrest. He says it did not involve his ex, nobody was bruised, nobody actually heard him yell "she hit me first," and so on. But he's pretty mum about what happened and who said what to get him arrested.
/8 Michael Avenatti is a public figure. (Thanks for that, media. Swell judgment.) To prevail on defamation, he has to show that false statements of fact were made about him with actual malice -- that is, knowing they were false or with reckless disregard to their falsity.
/9 His coyness about exactly what DID happen, by focusing only on what DIDN'T, interferences with his effort to plead convincingly that the Fox defendants knew that the reporting was false. Moreover, Avenatti cites a Jacob Wohl tweet saying his company had "struck again" ....
/10 ...but does not convincingly explain how that put anyone on notice that the allegations were fake as opposed to showing that Wohl publicized them. In short, though he cites at least some potentially defamatory statements, he's conspicuously light on pleading actual malice.
/11 And then there's damages. Avenatti ignores the elephant in the room, by which I mean three federal indictments and his subsequent conviction of federal crimes on one of them and his pending trial on the others and all the publicity and reporting on their underlying facts.
/12 Legend and legal theory speak of a "libel-proof plaintiff" -- someone whose reputation is so terrible they can't as a matter of law be defamed. Avenatti may be that plaintiff. He's like the guy suing you for slapping his face immediately before he got hit by a freight train.
/13 Though he mentions his Presidential aspirations, to his credit he does not expressly blame Fox for destroying them. He does claim he suffered "ridicule, significant damage to his life and reputation, and substantial monetary damages in the millions of dollars."
/14 Even though the actual malice claim is dubious, and the damages are laughable, this may be enough to survive at the pleading state. Delaware's anti-SLAPP statute is shitty. That's probably why he sued there (he says Fox News Network, LLC is a resident there).
/15 This suit is performative and petulant. His damages theory is ludicrous. He may have a strategy for how this suit will help his criminal defense, but if he does, that theory is very, very stupid indeed. This suit exposes him to discovery that could hurt him in criminal cases.
/16 Sometimes prisoners file suits just in hope of getting taken to court because prison is dull and travelling to local lockup and court can be diverting. Maybe that's it? Though Avenatti lives (perforce) rent-free in my head, as he likes to say, I don't know.
/17 Anyway, tomorrow I will write it up on Substack, if I feel like it after a long hike we're attempting. Here it is.
https://www.popehat.com/wp-content/uploads/2020/11/AvenattisLastStand.pdf
https://www.popehat.com/wp-content/uploads/2020/11/AvenattisLastStand.pdf
