Have you ever had the feeling that you have discovered something really important and new and exciting, wondered why no one else had not thought of it before, and couldn’t wait to tell it to the world but on checking carefully realized that the great idea was wrong, or even worse, utterly stupid? If you were lucky, you arrived at the realization before you broadcast the news. But that was more likely to happen before Twitter where people are able to post their half-baked theories as soon as it enters their head and then have to backtrack later.
The latest example of this is a series of tweets by a lawyer named Ed Whelan, president of the Ethics and Public Policy Center in Washington, who is a major figure in conservative legal circles and apparently an advisor to embattled Supreme Court nominee Bart Kavanaugh. He posted a large number of tweets where he laid out an elaborate theory full of purely circumstantial connections in which Christine Blasey Ford could have mistaken a classmate of Kavanaugh’s for Kavanaugh as her attacker. Ford has said that there is no chance that she was confused as to who assaulted her.
What is remarkable is that Whelan not only named this new figure as an attempted rapist but also gave out his address and photos of him and of the interior and exterior of his home where the attack supposedly took place as well as the floor plans for upstairs and downstairs and a map pointing out its location. Not only was Whelan publicly accusing a private citizen of a serious crime, it was as thorough a doxxing of someone as one can imagine, not by some random guy on the internet, but by a person deemed as highly credible.
A graduate of Harvard Law School who served as a law clerk to the late Justice Antonin Scalia, and a blogger on legal issues for National Review Online, [Whelan] has worked alongside Federalist Society executive director Leonard Leo advising the White House on judicial nominations.
“Ed Whelan is the model of careful, discerning legal analysis and commentary. It’s why all of us who know him take everything he says and writes so seriously,” said Rich Lowry, the editor of National Review, where Whelan writes on judicial issues.
Adding to the intrigue, Whelan has told at least three associates that his confidence level in his assertions is “close to 100 percent.”
The Twitter stream (that I read) has been seized upon by right-wingers and spread far and wide as a possible exoneration of Kavanaugh, though it undercut their contradictory claim that the assault never happened at all.
But as observers such as Jay Michaelson were quick to point out, what Whelan did was defamatory.
Defamation is defined under common law as any false statement of fact that exposes a person to hatred or ridicule, or which might harm the victim’s business or trade. Under federal law, it means statements that are “false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.” (Libel refers to written defamatory statements; slander to spoken ones. Tweets count as written.)
Whelan’s statement easily qualifies. In fact, accusing someone of a criminal offense is so egregious that it is “defamation per se,” meaning, it’s always considered defamatory. (See the Restatement (2d) of Torts, §§ 570-574.) You don’t have to prove emotional distress or reputational harm—if you’re wrongly accused of sexual assault, you’ve been defamed.
Moreover, while courts have made it harder to prove defamation against public figures, the individual Whelan named is an ordinary private citizen. All he would have to do is show that Whelan acted negligently in posting his tweetstorm.
Why Whelan, someone who should have known better, took this extraordinary step is unclear, as is the question of the extent to which he has been coordinating with the Kavanaugh team. He has now removed the tweets and apologized for sending them out but the damage is done.
And there the matter stands.