Democracy Dies in Darkness

Erik Wemple | Opinion

Harvey Weinstein's puzzling legal threat against the New York Times

By Erik Wemple

October 6, 2017 at 11:30 AM

Harvey Weinstein arrives at the Oscars in Los Angeles in 2014. (Jordan Strauss/Invision/AP, File)

How does Harvey Weinstein really feel about the New York Times’s investigation of his history with women in the workplace?

The revelations are astounding: Jodi Kantor and Megan Twohey compiled “previously undisclosed allegations” of sexual harassment and “unwanted physical contact” against this Hollywood titan. The story begins with a creepy scene in which the actress Ashley Judd discusses how Weinstein two decades ago invited her to his hotel room and asked her to watch him take a shower, inter alia. Hotel-based sleaze is one of the patterns that the New York Times documents in the piece, which is based on “interviews with current and former employees and film industry workers, as well as legal records, emails and internal documents from the businesses he has run, Miramax and the Weinstein Company,” according to the article.

When then-Fox News chief Roger Ailes was presented with allegations of sexual harassment — first in a bombshell lawsuit, later in published reports — his response was univocal: Deny, deny, deny. And when the New York Times unearthed a bunch of settlements relating to the alleged sexual harassment of former Fox News host Bill O’Reilly, his response was univocal: Deny, deny, deny.

The guy behind “Pulp Fiction,” “Shakespeare in Love” and many others prefers more drama, apparently. On the one hand, he wrote an essay blaming his inexcusable behavior on … decades. “I came of age in the 60’s and 70’s, when all the rules about behavior and workplaces were different. That was the culture then,” noted Weinstein.

Yeah, right: The old coercive shower-watching culture.

More: “Though I’m trying to do better, I know I have a long way to go. That is my commitment. My journey now will be to learn about myself and conquer my demons.” He has enlisted the fiery lawyer Lisa Bloom to assist in his evolution to a person-who-can-stop-asking-women-to-watch-him-shower.

There’s another hand, however. “The New York Times published today a story that is saturated with false and defamatory statements about Harvey Weinstein.” That line comes from Charles Harder, perhaps the country’s hottest defamation attorney — you know, the guy who represented Hulk Hogan in the famous suit against Gawker, and Melania Trump against the Daily Mail. The attorney’s threat statement continues: “It relies on mostly hearsay accounts and a faulty report, apparently stolen from an employee personnel file, which has been debunked by 9 different eyewitnesses. We sent the Times the facts and evidence, but they ignored it and rushed to publish. We are preparing the lawsuit now. All proceeds will be donated to women’s organizations.”

Some unpacking is in order here. The first line of Harder’s statement is fascinating in light — again — of Weinstein’s self-incriminating statement. Did we mention yet that the statement includes a line about how Weinstein is planning to take a leave of absence from “my company and to deal with this issue head on”? In light of that pledge, just how saturated with slanderous falsehoods could the story be? Presented with these circumstances, a lawyer friend mentions the apocryphal tale often recounted at Georgetown University law school involving a Jesuit priest accused of killing eight men and a dog. Faced with this towering set of charges, the priest produces the allegedly dead dog in full living glory. That’s not much of a defense.

“Mr. Weinstein and his lawyer have confirmed the essential points of the story,” notes Danielle Rhoades Ha, a spokeswoman for the newspaper. “Mr. Weinstein has not pointed to any errors or challenged any facts in our story. Also, Mr. Weinstein should publicly waive the NDAs in the women’s agreements so they can tell their stories. As a supporter of women, he must support their right to speak openly about these issues of gender and power.”

Dismissing the story as dependent on “hearsay accounts” is the common refuge of any politico or celebrity under fire from wholesome investigative journalism: There’s always blame landing on “anonymous sources” and allegedly flimsy reporting. Consider, however, that Kantor and Twohey have wrangled an admirable number of on-the-record sources to document Weinstein’s tendencies, including Judd.

As for the “apparently stolen” report, that’s an interesting allegation that pertains to a memo written by Weinstein colleague Lauren O’Connor on Weinstein’s alleged misconduct. Clearly, Weinstein & Co. didn’t want the document leaked — and the reference here to theft and wrongdoing raises parallels to the imprecations of President Trump and his allies toward government employees who pass along precious tips to the press. Like all other U.S. media companies, the New York Times enjoys protections to publish stories based on information that its sources may have broken laws to obtain — so long as the journalists didn’t participate in the criminality.

Asked about this theft thing, New York Times spokeswoman Danielle Rhoades Ha responded, “Documents were provided to The Times, as they are on many stories.”

Next up is the part about how “9 different eyewitnesses” allegedly debunked the report. According to Ha, “The ‘eyewitnesses’ pertain to material that we never published or planned on publishing.” More on that front: “We shared the allegations that we were going to publish and Mr. Weinstein chose to respond to only some of them. His team spent a lot of time rebutting material that was never part of our story.” The newspaper spent four months on the project and, according to Ha, started conversing with Weinstein “early” in that process.

A recent defamation complaint against the New York Times showed anew just what sort of legal hurdles someone like Weinstein must clear. Under U.S. law, public figures must prove that a news organization knowingly published falsehoods or did so with reckless disregard of the facts — the so-called “actual malice” standard. Sarah Palin in June sued the paper over an editorial that drew a connection between her political action committee and the murderous 2011 rampage of Jared Lee Loughner in Tucson, Ariz. Though testimony showed that the editor responsible for the editorial had inserted false statements without having done important research on the topic — showing that there was no evidence of a causal connection — a federal judge dismissed the suit.

Clay Calvert, a University of Florida defamation maven often consulted by this blog, notes, “The New York Times article has so many different allegations swirling around in it that one or two might prove to be false. But proving the New York Times acted with reckless disregard for the truth in publishing them would be very difficult.”

And does Weinstein — a generous Democratic donor and supporter of Hillary Clinton — really want to open himself to the discovery that comes along with a defamation suit? As noted in Brian Stelter’s CNN newsletter, Ronan Farrow is working on this story for the New Yorker, and Variety editor in chief Claudia Eller called it “The story we all tried to get for decades.” That story could branch out, if the Ailes case is any guide: After a former Fox News anchor sued him for sexual harassment in July 2016, other complainants came forward in legal filings and published reports.

So maybe the legal threat is nothing more than a warning to the New Yorkers and Varietys: Be very careful.


Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.

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