Deadspin's Barrage on ESPN Raises Legal Questions

Editor's Note: Clay Travis, a senior writer at FanHouse, was employed at Deadspin as an associate editor and writer from July 2008 to December of '08.

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Earlier Wednesday Deadspin editor A.J. Daulerio went to war with ESPN in retaliation for stonewalling from inside Bristol about the Steve Phillips affair. In a post that went up at noon ET, Daulerio unloaded on ESPN for denying any impropriety on Phillips's behalf when he asked them about it in September.

In that post, he threatened to unleash holy hell on ESPN for sexual harassment scandals that have gone heretofore unreported. Over the next several hours, Deadspin, the largest sports blog on the Internet, reported on Eric Kuselias' reprimand for sexual harassment at Monday Night Football parties, his alleged affair inside the company and his subsequent divorce. Even the ESPN suits came in for it: Katie Lacey, Executive Vice President at ESPN and head of marketing, was accused of interoffice affairs and being named in an EEOC complaint.

Deadspin threw the entire ESPN corporate culture under the bus in a final post for the day. That post included this phrase for the road crews: Importing: "This is when you have a girl on the road but then fly her in to another destination. Women of this caliber may or may not be let out of hotel, either for fear of being outed or because they are not that attractive."

All of these posts arrived via the understated banner headline: ESPN Horndog Dossier.

In the process of making these posts Deadspin raised many interesting issues for the blogosphere, major media corporations, and the legal rules that govern online writing. Despite the growing popularity of blogs, most of these issues have not been adequately examined. So here we go.

As a preliminary, the stormy relationship between ESPN and Deadspin is, I think, illustrative of the simultaneous attraction and revulsion that large media feel with more independent blog sites in today's Internet age. In the four years that Deadspin has existed, ESPN has moved from blacklisting the site as a source for all news to hosting the site on the network's campus in Bristol, Conn., and inviting writers and editors to corporate events. In essence, ESPN has gone from the consistent butt of posting jokes to a knowing conspirator, an accomplice in Internet lampooning. Last week, in an effort to acknowledge the growing power of the blogosphere while also bringing them within the scope of the Disney umbrella, ESPN even sponsored a gathering of bloggers in Las Vegas, Deadspin included.

If rapprochement was the goal, it failed. At least in the short term. Less than a week later, Deadspin unleashed scores of missiles directed at Bristol in retaliation for -- and this is pretty amazing if you know the site's history -- not being forthcoming enough when questioned about specific corporate incidents. Yep, ESPN has worked so hard to include Deadspin within their embrace, that when, paradoxically, they aren't forthcoming with the site, the response is even more withering than it ever would have been if there had been no relationship at all. The lesson is clear, attempt to seduce the blogosphere at your own peril. In the foreign policy arena, ESPN is a bumbling nation-state intent on quelling all Internet danger. Deadspin is Iran, trigger always poised on the posting bomb.

Now, as a point of demarcation, the idea that ESPN is a corporate monolith is flagrantly incorrect. The reality is that many of the best tips that Deadspin receives emanate from employees unsatisfied with their own employer. Many of these tips Deadspin doesn't run, but the fact remains that many of the people most incensed by ESPN are often ESPN employees. Lacking a method to express their frustrations publicly, they often turn to sites such as Deadspin to air the company's dirty laundry. Which is why Deadspin could taunt ESPN by mentioning a meeting at 6 PM Wednesday that dealt with the fallout from Wednesday's blog posts. Someone on the inside is always e-mailing.

As a result of the Deadspin jihad, ESPN employees feverishly logged onto their computers to see who would be the next target unveiled. And Deadspin's actions, as the most public of the sports blogs, became a fevered topic across the Internet. One of the favored criticisms of blogs in general by "mainstream" media is that blogs lack accountability. Backing into this, the definition of "mainstream" is entirely out of whack by those who toss it around. In August, Deadspin had 22 million page views. On Wednesday alone, the site had over one million. If Deadspin is not "mainstream," then virtually every newspaper site in the country is outside the mainstream as well. So are most television shows on cable, virtually every print newspaper in the country, and just about every radio show on Earth. So Deadspin rests squarely in the middle of the stream, occasionally urinating in the water as it goes past perhaps, but squarely in that stream.

Second, what do we mean by accountability? Surely Deadspin employees, who are employed by Gawker Media, are accountable to their bosses like employees everywhere. Moreover, even if bloggers aren't employees, all of us are accountable to the law, and isn't the law the ultimate arbiter? And that's where the rubber meets the road when it comes to this dispute between Deadspin and ESPN. What are the legalities as it pertains to Deadspin's actions. In other words, will they get sued for posting this information, and if they do, what will be the fallout?

This falls squarely within my legal wheelhouse. And let me tell you, that's tough to do. In fact, three weeks ago I led a Continuing Legal Education seminar on the legalities of Internet writing in the 21st century, with a particular focus on liability, public figures, and the jurisprudence of blogs. So let's dissect the issues at hand here.

First, is Deadspin going to get sued for airing the dirty laundry of ESPN?

And the short answer is, who knows? Companies file lawsuits all the time. Just because you're sued doesn't mean you've done anything wrong. All that a suit requires is a compliant lawyer and money to pay them. And let me tell you, those two things are not in short supply. The more interesting question is, what are the legal ramifications of posts such as Deadspin's in today's era of defamation law?

Let's begin with the most important part of any defamation suit -- if it's true, it's not defamatory. What's more, the plaintiff (person filing the suit) bears the burden of proving the defamation is not true. Which means that many lawyers advise their clients against bringing suit because then the plaintiff's private life is opened up for scrutiny during the discovery phase of the case. (See Clemens, Roger) And if you have any skeletons in your closet, you don't want to get deposed on these issues. So there's that hurdle for any potential plaintiff.

The second most important aspect of a defamation case is actually establishing whether or not someone is a public figure. Why is that important? Because if you aren't a public figure then you merely have to prove negligence by the publisher of the false information. So if you're a virulent or snarky writer, you want to go after public figures. Fortunately for Internet writers, the vast majority of blog posts deal with public figures. And New York Times v. Sullivan has enshrined an awful lot of protection for blogosphere publishers. In that famous case from 1964, the Supreme Court ruled that in order for a public figure to recover for defamation they must be able to prove that the statement was made with "actual malice", i.e., a. a knowledge of falsity or b. a reckless disregard of whether it was true or false.

In the present situation, the on-air talent such as Kuselias, would clearly be a public figure. I think it's a closer call on the executives, such as Katie Lacey, but I'd be inclined to argue that those individuals are also public figures given that their conduct as employees of a major sports company is being called into question by a sports blog in relation to a sexual harassment policy espoused by the company. Again, I think that's a closer call, but it's directly related to their jobs. Particularly since Lacey is director of marketing and would regularly deal with the public side of network life.

As an aside, in an Internet age, drawing the line on who is a public figure and who is not, is fascinating to me. And it takes a ton for the law to be fascinating to me. For instance with Facebook, Twitter, online profiles on work sites, and the like it's awfully hard to distinguish where the line is between public and private for anyone with an online presence. Is a Facebook status message that is limited to only your friends, for instance, fair game for the entire world to consume? We've had several instances of those messages being huge national stories in the sporting arena. Surely those messages were intended only for the "friends" on that network. What about sports message boards, some of the wildest places around? Are all college athletes public figures? Is a lacrosse player at Loyola of Chicago the same as Tim Tebow?

I'd argue that there's almost a default presumption that we're all public figures now in the way that reporting and Internet linkage takes place. But that position has not really been explored yet by the courts. Why does this standard matter when it comes to public vs. private figures? If you aren't a public figure, or a limited public figure which is even more nebulously defined, your tort case is governed by negligence law. And negligence is infinitely easier to prove. Which means that lawyers could recover damages in a court of law if the figures are private.

Next question, assuming these figures are all public, do Deadspin's posts amount to actual malice?

Now that's pretty fascinating question as well. This entire situation reads like the hypothetical case set forth in a law school First Amendment exam. Again, for this to be actionable in a court of law it would have to be false. And you'd have to prove either that Deadspin knew it was false, virtually impossible to do, or that Deadspin showed reckless disregard about whether these stories were true or false. Again, this is an awfully hard standard to meet in a court of law.

So my professional opinion as a lawyer is that these posts wouldn't allow someone at ESPN to recover for them. It doesn't mean that a lawsuit won't be filed, but it means I think Deadspin is protected.

What this controversy between ESPN and Deadspin brings to the forefront is the challenge of blogging, and being blogged about, in the current era of jurisprudence. We're utilizing First Amendment cases that are decades old and attempting to apply them to an entirely new arena of writing. Consider that when the New York Times v. Sullivan case was decided, judges could rest assured that before they ran anything in the newspapers, lawyers had seen the articles and there had been hours to consider the implications of publication. Now, in an Internet age, everyone is a publisher, lawyers aren't usually involved, and there are often minutes, if that, to decide before clicking publish.

Does that change the framework of the law's application? Does an Internet age where we're all public figures in some sense change the law?

Who knows?

All we know for certain is this: Wednesday marked the highest profile fight between a blog and a company in the sports arena. More will be forthcoming. And unless your reputation is spotless, or your name is so uncommon no one can find you, Google is not going to be your best friend.