Thursday, February 3, 2011

Dear Dan Snyder

An article written by Dave McKenna for the back in November is getting a lot of press because "Mr. Snyder" is threatening to sue. The article is rich. Must reading for any Redskins fan.

I've scoured the comments section for something reasonable to post, and found what I was looking for. Good reading for any lawyer out there.

"Having lived in DC for many years - off and on - but not been a Redskins fan, I have another gripe against Snyder. Used to be - you could get all sorts of things done in DC when the Redskins game was on - go to the hardware store, visit Nordstrom, pick up groceries. Traffic was lighter and queues shorter since everyone was watching the game. The only thing you could not do was get into a bar with the game on - it was packed. Since Snyder has teken over the traffic is backed, the lines at Home Depot have grown, and opportunities to drink beer and eat burgers have increased to the detriment of my waistline - and it is all Snyder's fault.

As a lawyer, I am very amused at the threatened lawsuit by Snyder. There has been a lot of rumbling - burt no lawsuit yet. Snyder may be having a problem - getting a lawyer to sign the complaint. The problem Snyder has is that this article - and I read it - appears to have been very carefully "vetted" by a lawyer for City Paper before it was published - and by the looks of it had at least two items of backup verifying every entry. If some of the posters here wonder why their little bits of dirt on Snyder did not make it into the story - it's probably because the lawyers cut it for lack of enough backup to make them feel comfortable. So the first problem Snyder has in chasing this story is that he has to show something false in it - and his lawyers know that they will have a serious problem signing a complaint for libel, defamation or slander if they cannot show after reasonable investigation that something in the article was not true. As an aside, I wonder who had the unenviable task of explaining that to Snyder and saying 'umm well, Mr. Snyder, most/all of it is true."

Worse still Snyder is also stuck with the public figure exception, and given that he has made himself a very public figure, he would have a high burden to surmount to bring a suit. In New York Times v Sullivan, 376 US 254 (1964), the supremes created the carve-out form ordinary libel, defamation and slander that where people that have put themselves in the public spotlight, they have to show that the defendant engaged in actual malice before you can be found liable. The burden of proof is also on the public figure, i.e., Snyder, to prove that the author knew the statement was false, or you acted in reckless disregard of the statement’s falsity or truth.

The New York Times standard is very hard to overcome - perhaps unfairly hard in many cases. But even so, this article seems to run into the standard straight on - and if the City Paper lawyers vetted the article properly (and it reads like they did), they made sure that McKenna had some reasonable basis to show them for every painful statement in it. And while McKenna may have regarded the vetting lawyer as a "pain in the ass" at the time, he should buy that guy/gal a beer this weekend for doing a thorough job.

I just wonder - who is the poor legal-schmuck who is going to have the explain this to Snyder....."

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