How Messy Will the Post Libel Case Get?

With the D.A.’s case against DSK seemingly D.O.A., the lawyers representing the housekeeper who accused him of sexual assault have opened up a new legal front: She is suing the New York Post for libel after the paper alleged she is a prostitute. Does the housekeeper have a better case against the Post than the state does against Dominique Strauss-Kahn?

Since the beginning of the DSK saga, the Post and its legendary headline writers have covered the story with anglophilic tabloid gusto, trotting out every French stereotype from “Pepe Le Pew” to “Booty Gaul.” (Le Monde catalogued the paper’s heavy lean, offended on behalf of DSK and Frenchmen everywhere.) But it also was among the first to suggest that the housekeeper wasn’t a sainted victim, running a story that she’d lived in subsidized housing meant for AIDS patients.

Once the tables turned, and the district attorney’s office admitted that the housekeeper had serious credibility issues (a development that was reported, in a massive scoop, by the rival New York Times), the Post turned on a dime and put the witness squarely in the glare of the tabloid front page:

The scare quotes around “hooker” (in legalistic tabloid speak, scare quotes are supposed to signify that “this is someone else’s assertion, not ours”) were the paper’s only nod toward caution. In the article itself, the allegation was made more baldly:

Dominique Strauss-Kahn’s accuser wasn’t just a girl working at a hotel — she was a working girl.

Such naked assertions of controversial fact are usually avoided by the British tabloids, according to Lucy Dalglish, an attorney and executive director of the Reporters Committee for Freedom of the Press (although the current scandal at News of the World, the Post’s sister tabloid under the Murdoch umbrella, suggests that other nefarious practices are common).

They raise tantalizing possibilities and scenarios, but often resist the impulse to just pull the trigger and flat-out directly defame someone,” she said.

The Post followed up with two additional articles about the housekeeper’s alleged prostitution; her legal team responded with Tuesday’s lawsuit. So who is standing on shakier legal ground?

Unlike across the pond, where libel laws are quite favorable to plaintiffs, the burden of proof is on the housekeeper, and in a case like this one that burden is quite high.

The plaintiff’s lawyers have to prove a couple of things: First, that the allegation that the woman was working as a prostitute is demonstrably false. Second, if the woman is ruled a public figure (as she probably will be, even though she has attempted to remain anonymous) her lawyers will need to prove that the Post wrote the stories with actual malice. The merely negligent use of unreliable sources, while it might be an offense against journalism, doesn’t quite constitute libel. That’s why the complaint (here, in full) so carefully details the Post’s full coverage of the case: Her legal team wants to show that the paper had gone after the woman in a persecutorial fashion.

Meanwhile, if the Post is unable to prove that the woman is a prostitute, it comes down to where the paper got its information. If the Post can disclose its (single, currently anonymous) source, and it’s a person reporters and editors have had reason to believe is reliable and had special knowledge of the situation (like, say, a cop), then it wasn’t reckless, even if it does turn out that the source was lying.

New York State in particular is quite friendly to freedom of speech/press claims, says Sandra Baron, executive director of the Media Law Resource Center. Over the past 30 years, the number of such libel cases that have actually gone to trial has decreased, even as the proportion won by the media defendants has increased.

New York also has what’s known as an anti-slap anti-SLAPP statute — if the Post believes that the lawsuit doesn’t have any real grounds and the paper was sued just for the purposes of shutting it up, it could ask a judge to dismiss the suit outright. However, it would be pretty hard in this case to argue that the damage done to the woman’s reputation by such an allegation is trivial.

In all likelihood, predicted one lawyer who has defended various media companies, the DSK accuser will at the least get her day in court. But “these things are never quick,” Dalglish said. It could be years before the case goes to trial.

A free-swinging tabloid like the Post might seem vulnerable to such suits, but even if insinuation plays a role, lawsuits like this one aren’t won on the relative bombast of punning headlines. “What is at issue here is whether or not the publication had reason to believe that the story is true,” said Baron. “At the end of the day every case turns on its facts.”

Related: The DSK Files: Sorting Out the Evidence, Rumors, and Conspiracy Theories About Dominique Strauss-Kahn
Sexual Assault Case Against Dominique Strauss-Kahn ‘on the Verge of Collapse’ [Update]

How Messy Will the Post Libel Case Get?