Man Without Qualities

Friday, November 15, 2002

It's Just My Opinion, ...

... but I think OpinionJournal got it right the first time. Today OpinionJournal "corrects" its earlier article:

Hillary's off the Hook
Our item yesterday on Gennifer Flowers's defamation suit relied on a New York Post report that misstated the findings of the Ninth U.S. Circuit Court of Appeals. The court, whose decision (in PDF format) is here, did not overturn a lower court's decision to throw out Flowers's claim against Sen. Hillary Clinton, though it did reinstate some claims against Democratic consultants turned TV talk-show hosts James Carville and George Stephanopoulos.

I don't think this "correction" is correct. It appears that the 9th Circuit did overturn the lower court's decision to throw out some of Flowers's claim against Sen. Hillary Clinton. The 9th Circuit's actual order is, in relevant part:

Gennifer Flowers claims that defendants knew she was telling the truth, knew the tapes weren’t doctored, knew the news reports they claimed to rely on were wrong, but accused her of being a liar and a fraud anyway. If Flowers’s claims are true, her suit does not offend the First Amendment. She has produced no evidence yet to support them, but under our system of civil procedure, she must be given at least some chance to seek it before her lawsuit is thrown out of court. We AFFIRM the district court’s dismissal of all claims based on Carville’s book, the disclosure and intrusion claims against Clinton, and all claims based on Stephanopoulos’s book other than those related to the tape-doctoring passage. We REVERSE dismissal of the defamation and false light claims based on Carville’s Larry King interview, Stephanopoulos’s Larry King interview, and the tape-doctoring passage in Stephanopoulos’s book.

One might think that this dismisses the claims against Senator Clinton, since it affirms, for example, "all claims based on ... the disclosure and intrusion claims against Clinton." But these dismissed claims do not appear to be the only claims brought by Ms. Flowers against the Senator. Ms. Flowers seems to have brought a civil conspiracy claim against all of the defendants which would hold all of them jointly and severally liable for "the defamation and false light claims based on Carville’s Larry King interview, Stephanopoulos’s Larry King interview, and the tape-doctoring passage in Stephanopoulos’s book" if she can show they were all in on the conspiracy.

The 9th Circuit describes the conspiracy claim as follows:

Flowers claims that during the 1992 campaign and in later political memoirs and interviews, Carville and Stephanopoulos defamed her and painted her in a false light by claiming that she had lied in her story to the Star and “doctored” the tape-recorded phone calls. Hillary Clinton, the alleged mastermind of the conspiracy, not only orchestrated the defamatory exploits, but also exposed private information about Flowers and organized break-ins of her residence. Flowers claims that, as a result of all this schemery, her reputation has wilted and her blossoming career as a Las Vegas lounge singer has been nipped in the bud. .... [The district court] dismissed the false light claims as duplicative of the defamation claims, threw out the charges against Clinton as time-barred and impermissibly vague and rejected the conspiracy claim because, with everything else dismissed, there was nothing left to conspire about. .... [Footnote 12:] The district court dismissed the conspiracy claim because it had dismissed all of the underlying claims. We vacate this decision but leave it to the district court to dispose of the claim on any appropriate factual or legal ground.

Yes, after the 9th Circuit is done, there clearly was something "left to conspire about." And the 9th Circuit is clear - especially in its Footnote 12 - that if Ms. Flowers can show a conspiracy and all the rest, she will prevail.

Hillary is not off the hook... yet.

Or at least that's my opinion about the OpinionJournal's item on the 9th Circuit opinion.

UPDATE: And it also seems to be the opinion of the Los Angeles Times and the New York Times (The appeals court also asked the trial judge to reconsider a related conspiracy claim against Hillary Rodham Clinton, whom Ms. Flowers said was involved in "the Clinton smear machine.")

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