EZRA KLEIN: hey boehlert whats the assignmentHa. But why is he on my case? "Ann Althouse continues to blog about Journolist; appears to have no idea what it was," he says. Well, then, release the archive so I can cure my terrible ignorance. That's all I want.
ERIC BOEHLERT: 3 part essay
ERIC BOEHLERT: 1. Explain why unemployment report shows stimulus is working
ERIC BOEHLERT: 2. link BP oil spill to teabaggers
ERIC BOEHLERT: 3. spin latest Gallups
JOSH MARSHALL: crap crap crap and I have a lab assignment for global warming due
ERIC ALTERMAN: o fack me looks like an all niter...
Althouse continues to post item after item about Journolist, despite the fact that... Althouse has no idea what Journolist was.Stop me before I blog ignorantly again, Eric. Send me the archive. Or send it to Breitbart and collect $100,000 and I'll get to it that way.
Boehlert goes on to quote me saying that if I were to sue a Journolist member for defamation — something I'm not inkleined to do — I would be able to get discovery into the archive. Eric B. says:
Althouse, a law school prof and very public blogger, was thinking out loud about suing the owner of Journolist to find out if any of the 400 journalists on the listserv ever wrote anything nasty about her in their private emails. (Ego much?)Eric Boehlert continues to write about me like that even though he has no idea what the thing I wrote that he just quoted says. I cited a specific item of defamation against me that was published on the web and that remains there. If I were to sue based on that remark, I would be able to get discovery into relevant evidence about that claim. Moreover, I know that there are specific, related remarks about me in the Journolist archive, because that remark was tweeted, in Ezra Klein's own words, "after I was alerted to her thread on Journolist."
Boehlert imagines that one of my commenters nails his argument for him. Here's that comment:
I would think a law professor might have a better grasp of this. But on what grounds would you seek the archives? To borrow a popular argument of the right, where in the Constitution does it say you have the right to know what others are saying about you, especially when you have no proof they are saying anything defamatory about you.Clue to Boehlert: Not all law is in the Constitution. The tort of defamation is a matter of state law. The extent of discovery is a matter of procedural law. I don't need a constitutional right. (Conceivably, there is a right that would bar my access to the archive, but I don't need a constitutional right to discovery if I bring a defamation claim.)
So, Boehlert, your post is incredibly lame, but, as a law professor, I'll give you a rewrite. I think Media Matters portrays itself as a champion of truth, so... see if you can get a little closer to something that feels a little more truth-y.
On a related note: Yesterday, James Taranto, in Best of the Web, opined that a journalist's shield law would prevent discovery into the Journolist archive in a defamation suit:
Seems to us it would depend on the venue. Most states have some sort of shield law protecting reporters from having to disclose confidential sources, but the specifics vary from state to state. In federal court, however, there is no such privilege.The privilege is about shielding confidential news sources — informants. The Journolist archive contains the statements of journalists talking to each other. I don't see how the privilege could apply.
[Journalists] should, of course, have all the legal protections of the First Amendment, which among other things mean that Althouse almost certainly would not win her defamation suit against Klein. His offending tweet, it seems to us, is a constitutionally protected opinion rather than a false statement of fact.One reason I have no interest in suing is that I want the broadest First Amendment rights here. I would not want to have to argue that the statement in question — "Ann Althouse sure has a lot of anti-semitic commenters" — is not an opinion but a false statement of fact. But I'm afraid it is, quite plainly, a false statement of fact.