D.C. publicist Wendy Gordon and her lawyer tried last fall to address their gripes to FishbowlDC. The popular media-gossip site had been running a series of blog posts titled “Wendy Wednesday,” which skewered Gordon in true Fishbowlian manner. An Aug. 22 entry, for instance, displayed a photo of Gordon along an assertion that she is “DTF,” an acronym utterly untranslatable for a family-friendly Washington Post blog. Let’s just stipulate that it means “inclined to engage in sexual activity.”
On Oct. 5, notes Gordon lawyer David S. Wachen in a recently filed lawsuit against FishbowlDC, he sent his client’s request for a retraction to the site’s corporate owner, WebMediaBrands Inc. Other demands included elimination of all “Wendy Wednesday” posts, an apology and reimbursement for all of Gordon’s legal costs. FishbowlDC responded with half a loaf; it pulled down the “Wendy Wednesday” posts but issued no retraction or apology.
Here’s how Wachen interpreted the position of FishbowlDC/WebMediaBrands: “We don’t think we did anything wrong, yet we’re going to take it all down.”
Wachen said, “They never tried to defend what they did on the merits. They never said, ‘Here’s why what we did was protected expression.’ They never made any argument as to why it was appropriate or proper or defensible.”
And the Web site’s principals didn’t pass the personal conduct test, either, says Wachen. “Not only did they not want to engage in any discussion, but their arrogance was what drove her to file the lawsuit,” he says.
Mitchell Eisenberg, the executive vice president and general counsel for WebMediaBrands, declined a request for an interview but writes via e-mail, “We do not believe that there is any merit to the claims and plan to defend against them vigorously.”
That’s a curious position for a Web site that’s sitting on top of a whole bunch of deleted content. If there is no merit to the claims, then why erase the “Wendy Wednesday” posts?
Why, in other words, can’t the Erik Wemple Blog access the Aug. 15 edition of the series, in which FishbowlDC showed a photo of Gordon next to a wax figure of D.C. Council member Marion S. Barry Jr.? The write-up claimed that Gordon was “wishing” that she was performing a sex act on the D.C. icon. FishbowlDC’s description of this particular sex act doesn’t fall within The Washington Post’s content guidelines.
And why can’t we access the May 2 “Wendy Wednesday” edition, in which the site grabbed a picture of Gordon alongside a wax figure of Tiger Woods. Decency constraints, yet again, prevent the Erik Wemple Blog from capturing the wonders of the post, but we can quote from the Gordon complaint:
“Contrary to Defendants’ false and defamatory assertion, Ms. Gordon was not ‘straddling the neck of Tiger Woods.’ ” And: “Contrary to Defendants’ false and defamatory assertion, Ms. Gordon does not emit some type of unusual heat between her legs that would cause a wax figure to melt.”
Other now-inaccessible installments include an Aug. 29 item in which FishbowlDC writes, “We actually have a burning and enduring love for Wendy that grows stronger with every week. Kind of like chlamydia.” Another posting alleged that Gordon was “s___faced,” a condition that the complaint describes as being “drunk to the point of incoherence.”
Gordon is a PR professional at her own firm, Flash Public Relations LLC. According to her complaint, she focuses on clients in the hospitality industry and has done a goodly amount of pro bono work as well. Before all the attention from FishbowlDC and the pending lawsuit, Gordon maintained a low, though not inconspicuous, profile in a town full of people screaming for attention.
Perhaps that’s why she at first appeared mock-grateful to FishbowlDC for creating “Wendy Wednesday.” On Facebook a woman posted this remark to Gordon:
Can I call you wendy kardashian now? Your haters are making you famous! And look at it this way….you have an ENTIRE day.devoted to you! If they want to seriously give you that much free promotion….by all means let them!
Gordon replied: “Happy for the day and the promo — just helping them fact check.”
Don’t for a moment mistake those sentiments as general support for the FishbowlDC series, says Wachen: “These posts occurred on November 16, 2011 — before the particularly offensive Fishbowl posts from 2012 that are the focus of the lawsuit. … Wendy’s comments were sarcastic and tongue in cheek.”
Amid all the talk of tight-fitting clothing, sex acts and cougar-like behavior, there are two big questions about the FishbowlDC series.
1) Why pick on Wendy Gordon? Though Gordon circulated in the local media sphere, Wachen insists she didn’t have day-to-day interactions with Betsy Rothstein and Peter Ogburn, the key authors of “Wendy Wednesday.” “She didn’t really know these people,” he says. “It’s a mystery as to why they sought her out and made her an object of ridicule.”
2) Why challenge so many common-law libel standards in a single series? A good First Amendment plaintiff’s attorney likes nothing so much as statements that are defamatory per se. That legal term describes a statement so bad that it’s defamatory on its own. It’s automatically actionable, in other words.
In 1996, an Illinois State Supreme Court opinion listed five areas of per se defamation:
1) “words that impute the commission of a criminal offense“;
2) “words that impute infection with a loathsome communicable disease.” You know, like chlamydia;
3) “words that impute an inability to perform or want of integrity in the discharge of duties of office or employment”;
4) “words that prejudice a party, or impute lack of ability, in his or her trade, profession or business”; and
5) “false accusations of fornication and adultery.”
Bold text added to highlight the category from which FishbowlDC’s “Wendy Wednesday” posts steered clear. On all of the other fronts, FishbowlDC would appear to face grave legal troubles. Chlamydia is chlamydia, after all; printing that someone was “s___faced” could compromise that person’s professional standing; and the accusations of fornication are quite clear.
Clay Calvert, a University of Florida professor often consulted by the Erik Wemple Blog, wonders how much libel training goes on at WebMediaBrands. “What somebody at [WebMediaBrands] might have said here is that to suggest someone is sexually promiscuous — that’s a danger area. To suggest that someone has a communicable disease — that’s a danger area,” says Calvert.
Though the legal strategy of FishbowlDC/WebMediaBrands remains unclear, there’s one route that libel defendants may always pursue — a truth defense. That is, FishbowlDC attorneys could dial up a team of private investigators and set out to prove that the allegations leveled by the Web site against Gordon align with her actual conduct. Not a worthwhile undertaking, says Wachen.
“They’re not going to be able to prove truth here because none of it was true,” he says. “They just made stuff up about her.”
Alternatively, the FishbowlDCers could cross their fingers and channel the vibes from a 2002 case in California. Jennifer Seelig sued Infinity Broadcasting Corp. after she was called a “chicken butt” and a “big skank” on a radio program. An appeals court ruled no harm, no foul: “The phrase big skank is not actionable because it is too vague to be capable of being proven true or false. … The word skank is a derogatory slang term of recent vintage that has no generally recognized meaning. Like `creepazoid attorney,’ it is a ‘subjective expression[ ] of disapproval, devoid of any factual content.'”
The creators of “Wendy Wednesday” could use a dose of that logic.
Nasty is what FishbowlDC does, often to great effect. In a city where everyone is trained to be polite and deferential in their public actions, FishbowlDC gets mileage out of the petty and selfish conduct of media elites and their associates. It jumps on small conflicts — especially when news outlets don’t properly credit their peers — and small incompetence. A lawsuit from a glamorous PR exec against a media outlet involving sex and drinking: If only FishbowlDC could cover that one.