by Steve Timmer

Feb 19, 2015, 9:00 AM

How can you defame Larry Klayman?

I am going to try to write this story as straight and humorlessly as I can.

But it’s about Larry Klayman, the lawyer whose principal claim to fame is relentlessly hunting down Bill Clinton, and Little Bill, too.

Nearly two years ago now, Larry Klayman sued City Pages, Aaron Rupar, Village Voice Media, my friend Ken Avidor, and others for defamation. I wrote a little bit about it at the time.

Wonkette has written about it a lot more.

There is a link to the original complaint in the case, lodged in federal court in central Florida, near Disney World, I suppose, in my earlier story. That complaint has been amended a couple of times, but it still serves for our purposes here. And against what seem to me to be really long odds, the suit is still alive. There is a motion for summary judgment by the defendants pending in the court; if it fails, the case will go to trial.

Klayman sued for straight — there’s that word again — defamation and “defamation by implication” for a story that was written in City Pages about Klayman’s divorce case in Ohio where he was found (not alleged, found) to have engaged in some “inappropriate touching” of one of his kids. Maybe more; I don’t remember. No, I remember now: it was just one kid.

City Pages reported that fact (the magistrate judge’s finding) because Klayman had represented Minnesota’s own Bradlee Dean in an earlier defamation suit against Rachel Maddow and another Minnesota media outlet, the Minnesota Independent, for repeating Bradlee’s own words to, as I described it, a shocked and revolted public.

City Pages obviously thought Klayman’s Ohio legal troubles were at least mildly ironic in view of his representation of the bombastic Dean; here’s a bit of what I wrote earlier about Dean’s case:

Klayman was representing Dean (really Smith; Bradlee Dean is just an alias, Larry) in a defamation suit that alleged that Rachel Maddow, the Minnesota Independent and others had defamed Bradlee by repeating Bradlee’s own words to a shocked and revolted public.

This, of course, was a novel legal theory, admired in some circles, especially the circles that were concerned about the radical homosexualist agenda and the perverse radical gay, lesbian, transgender sexual orientation and lifestyle for children and others at home and in the workplace.

(Klayman brought suit on behalf of Dean because of Dean’s remarks about how the Muslims were at least moral enough to execute gays; the remarks were reported by Maddow, MSNBC, and the Minnesota Independent. That case came a cropper for Dean and Klaymen before trial.*)

Personally, I thought Klayman’s problems were way ironic. Klayman never denied the existence of the finding, but he complained that it wasn’t true, that the magistrate was not a judge (if I had a dime for every time I called a magistrate “Judge,” I could go bonefishing in Florida); he also complained that the magistrate was a Jew. Larry’s a Jew, but says he has found Jesus, and the magistrate was prejudiced against him. (Wonkette says you aren’t a Jew after you find Jesus; I have no opinion in the matter.)

For a public figure, which Klayman admits he is, he has to prove that a false statement was made about him, the truth or falsity of which can be ascertained (was the statement of the existence of the court’s finding true, not whether Klayman agreed with it), and that the statement was made with malice. Malice doesn’t mean what you think it does, friends. Even if City Pages wanted to roast Klayman on a spit, that would not be malice.

Legal malice means making a statement knowing it is false, or with a reckless disregard of  whether it is true of false. Here, what was reported was the existence of magistrate judge’s finding and its contents. The media, and you and I, too, friends, are privileged to report on the findings of a court.

It matters not a whit that Klayman claims the finding was false or that he believes that the magistrate was prejudiced against him.

Klayman says, Well, okay, what you reported about the existence of the finding is true, but you defamed me “by implication;” you omitted facts necessary to make the report accurate (at least as I see it).

Because of the actual malice standard, Minnesota does not allow defamation by implication against public figures. The case is being tried in Florida, however, and your results may vary. Here’s a little more of what I wrote about this case earlier:

Klayman brought his suit in Middle District of Florida. Whether or not Klayman can get personal jurisdiction over the defendants is an open question [he did]. But the whole thing is reminiscent of the landmark case of New York Times v. Sullivan, probably the most celebrated First Amendment case in American jurisprudence.

It is useful to examine the facts of the Times case briefly. During the Civil Rights era, northern newspapers like the New York Times were reporting on civil rights demonstrations and civil rights abuses by local authorities, bringing these matters to the attention of the American public in a way that they never had been before. It was mightily resented by the southern establishment, including law enforcement, and south­erners in general.

Since papers like the New York Times had national distribution, it was easy to sue them in state court. It was a common tactic of public officials to sue newspapers for libel, finding a fact that was wrong in a published article, whether it related to the story in any direct way or not. Sympathetic southern ju­ries, given the chance, gave large libel awards to law enforcement or other public officials against the newspapers, which they considered “outside agitators.”

The Times court ruled, of course, that the First Amendment required not only 1) that a statement published had to be false, 2) that it also had to have been made maliciously, that is, deliber­ately, or without regard to whether the statement was true or not.  And the malice had to be actual malice of a defendant, proven in the record, not to be inferred through some “reasonable person” (i.e., southerner) standard.

You can lay Times against Sullivan right on top of this one; it’s a perfect fit. Right down to southern animus, only this time it’s against gays and their supporters instead of African Americans and theirs.

The Supreme Court laid down the rule that it did in Times against Sullivan because the specter of defamation cases and awards had an obviously chilling effect on the reporting of an important story. That’s also true here. Larry Klayman came to town throwing his weight around on behalf of another controversial figure, Bradlee Dean. Dean threatened other people with defamation, too, including the late Karl Bremer.

The defendants are entitled to report on matters that bear on the credibility of supporters of Bradlee Dean, and the public is entitled to hear them. That’s the essence of the First Amendment.

Finally, my friends, since you’ve been so good in making it to the end of this, I’m going to give you an extra treat. Klayman has included Charlie Pierce’s Girl With The Faraway Eyes, Michele Bachmann, on his witness list. Bachmann has no first-hand knowledge about anything in the case. Perhaps she’ll testify about how tough it is to be a homophobe in Minnesota, or perhaps that Klayman passes the Christian test now.

*Update: If you want to read a comprehensive account of Larry and Bradlee’s Excellent Adventure, I recommend this story by MNObserver, an occasional contributor to this website.

Our heavy metal man of Jesus meets the judicial system

I don’t think that Larry or Bradlee ever paid their bill at the D.C. Superior Court.