Republican presidential candidate Herman Cain recently hired celebrity “pit bull” libel lawyer Lin Wood to defend him against the multiple sexual accusations that have surfaced in recent weeks.
Wood became earned his libel litigation chops after representing Richard Jewell, the American security guard who police considered to be a suspect in the Centennial Olympic Park bombing at the 1996 Olympics in Atlanta. Later, Wood represented the parents of JonBenet Ramsey, the woman who accused Kobe Bryant of sexual assault, and Gary Condit, the politician who was thought to be connected with the disappearance of intern Chandra Levy.
Slate Magazine’s XX Factor columnist Kate Julian even dubbed Wood the “anti-Gloria Allred” based on the juxtapositions of why the two attorneys originally made the choice to enter law school (Allred says its because of a comment a nurse made to her after receiving a botched illegal abortion after being raped; Wood says he knew he wanted to become an attorney after finding his father crying with the lifeless body of his mother lying nearby) and because Allred represents Sharon Bialek, one of Cain’s accusers. Needless to say, Cain has brought in the big guns. Anyone another attorney describes as the “pit bull you have chained to a stake guarding your house” is someone to be feared in the courtroom.
Wood maintains that he isn’t planning to litigate yet, but told the Atlanta Journal-Constitution that the accusers “should think twice, anyway.” Ladies, you are now on notice.
However, if Cain does end up filing defamation claims in court, he will have a high hurdle to jump. Because of Mr. Cain’s status as a public figure, in a claim of defamation, he needs to show actual malice. Actual malice is knowledge that a statement is false, or publishing a claim with reckless disregard as to its validity.
Of course, truth is an affirmative defense to claims of libel or slander. If the allegations against Cain turn out to be true, he is just plain out of luck. However, even if their validity cannot be proven, Cain faces the additional challenge of showing actual malice. Such a showing can be difficult to prove, as it speaks to the knowledge the publisher of the information had that it was false. According to the standard set forth for libel in New York Times Co. v. Sullivan, 376 U.S. 254, actual malice isn’t a simple matter of, say, a newspaper failing to adequately check its sources, but requires “recklessness” with the handling of the information. This means that in order to prove a claim of libel, the plaintiff would have to show that the defendant had actual doubt of the truth of the information, and acted recklessly in publishing the material, which it knew to not be true.
At this point, it isn’t clear who is telling the truth. Karen Kraushaar, the other non-anonymous accuser, has said she won’t comment further on the situation until the other women come forward and identify themselves. But, we may very well soon see the pit bull be let loose from the stake.