Regarding the issues brought up by the factually challenged Curt Schilling (ie: Why Didn't Barry Sue?) on the vertically challenged Bob Costas HBO show recently. I have to believe Costas himself accepts the sentiments expressed by Schilling and the legal logic expressed therein, since he certainly didn't challenge the statements and they appeared on the show that bears his name.
As counter evidence I would cite the position of Howard Wasserman, whose credentials are as follows:
Howard Wasserman is Associate Professor of Law, having joined the College of Law faculty in 2003. He graduated magna cum laude from the Northwestern University School of Law, where he was an associate articles editor of the Law Review and was named to the Order of the Coif. Following law school, he clerked for Chief Judge James T. Giles of the United States District Court for the Eastern District of Pennsylvania and Judge Jane R. Roth of the United States Court of Appeals for the Third Circuit. Prior to coming to FIU, he spent two years as a Visiting Assistant Professor at Florida State University College of Law. Professor Wasserman teaches civil procedure, evidence, federal courts, civil rights, and First Amendment; his scholarship focuses on the freedom of speech and procedure in public-law civil litigation. His recent work has examined the conflation and distinctions between judicial jurisdiction and substantive rights in federal litigation. He also is writing on the intersection between sports and free expression; he has presented on this subject at the Cooperstown Symposium on Baseball and American Culture at the National Baseball Hall of Fame. Professor Wasserman is a loyal Chicago Cubs fan.
Mr. Wasserman appears to have a strong background in both law and baseball.
I summarize the key points noted by Mr. Wasserman at the end of the page.
However, I would like to note special emphasis on the following quotes because they speak to one of the few remaining arguments the sanctimonious media "mental midgets" like Mr. Costas have left. We still hear the media bird-brains continue to chirp on incessantly "Why Didn't Barry Sue the Authors?- Why Didn't Barry Sue the Authors?".
A separate question is why Bonds has not sued the authors and publisher for defamation. Some have claimed that this failure is tantamount to an admission that the book is accurate. But this is too simplistic.
This is an extremely difficult standard for a plaintiff to satisfy. But the Supreme Court has held that the First Amendment demands it--to allow "breathing space" for discussion of public issues in which some error is inevitable and to avoid the risk of media self-censorship. Thus, even if he could prove falsity, Bonds would have a difficult time prevailing on a defamation claim, such that the lawsuit may not be worth the cost and effort.
So let's review. First off, he did sue. In the only manner he and his attorney felt they were best likely to prevail. And apparently Wasserman agrees.
Second, Wasserman states that the nexus of the argument on the surface is "too simplistic". I find this ironic because Mr. Costas chastised Rob Parker, a Detroit reporter who dared to suggest to Bob that he was making too big a deal of the steroids issue on the surface given that fans are voting with their wallets and telling MLB that they really don't care (at least not as much as Bob Costa does about the issue).
Costas diverted the argument by making a ridiculous comparison to baseball's "growth" in popularity after WWII but prior to integration by Jackie Robinson and the Dodgers. In other words, baseball was popular then, but still flawed due to the stain of segregation.
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http://thestartingfive.wordpress.com/2007/08/09/sports-journalism-and-perspective/
Sports Journalism and Perspective
Posted by jweiler on August 9th, 2007
Costas strongly challenged the premise of Parker’s claim with the following history lesson:
After World War II, baseball had a tremendous surge in attendance. Baseball was essentially segregated then. A few teams had a few Black players but no one in their right mind would say, ‘well, baseball remained popular so we don’t have to move with greater speed toward justice when it comes to integration of the game.’ I loved baseball in the fifties and sixties growing up; that doesn’t mean that Curt Flood and Marvin Miller weren’t on the side of justice and didn’t have principle on their side because something in the game needed to be corrected and I was able to separate those two things. Baseball was flawed and it was unjust and it needed to be reformed in terms of players rights, but at the same time I loved the game.
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What little Bobby failed to mention is, any increase in attendance at the point he references was measured against deflated numbers in prior years due to the troops being overseas fighting the actual war. Even those that remained on the mainland had to have their attentions somewhat diverted by more pressing issues than baseball.
Second, the integration train had clearly already left the station. Baseball owners knew at that point that they had to integrate to expand their audience and they did it. Some parts social justice, some parts economic reality and survival. It may be a rewriting of history, but I understand the Negro Leagues were actually outdrawing the Major Leagues during the war, so it may have been more of an economic decision than anything else. MONEY TALKS.
To compare this current made-up "social issue" (steroids) to segregation would be laughable if it weren't so demeaning. Maybe Mr. Moral Compass needs a check-up from the neck up. Shouldn't take too long.
YEAR GAMES TOT ATT AVG
MLB 1930 1,234 10,132,262 8,211
MLB 1931 1,236 8,467,107 6,850
MLB 1932 1,233 6,974,566 5,657
MLB 1933 1,226 6,089,031 4,967
MLB 1934 1,223 6,963,711 5,694
MLB 1935 1,228 7,345,316 5,982
MLB 1936 1,238 8,082,613 6,529
MLB 1937 1,239 8,940,063 7,216
MLB 1938 1,223 9,006,511 7,364
MLB 1939 1,231 8,977,779 7,293
MLB 1940 1,236 9,823,484 7,948
MLB 1941 1,244 9,689,603 7,789
MLB 1942 1,224 8,553,569 6,988
MLB 1943 1,238 7,465,911 6,031
MLB 1944 1,242 8,772,746 7,063
MLB 1945 1,230 10,841,123 8,814
MLB 1946 1,242 18,523,289 14,914
MLB 1947 1,243 19,874,539 15,989
MLB 1948 1,237 20,920,842 16,913
MLB 1949 1,240 20,215,365 16,303
http://bss.sfsu.edu/tygiel/hist490/mlbattendance.htm
Let's see 1942, we enter WWII and attendance goes down 10%. By comparison,after the 1994 World Series cancellation, attendance fell almost 30%. So baseball did three times the self-inflicted damage as a major World War.
In 1945, the war ends and in 1946 attendance does jump, however most historians would attribute this jump in attendance to the return of the troops, the euphoria of the ending of the war and increased leisure time and purchasing power. Also, 1946 is the year the Dodgers signed Jackie Robinson.
So in reality, baseball jumps back to almost pre-war attendance levels and then segregates. It was hardly "popular" on a relative basis if the Negro Leagues were outdrawing them from a smaller population base.
Again, HISTORY REPEATS. FOLLOW THE MONEY. In spite of occasional bouts or moral indignation and selective recall/faulty reciting of history.
BASEBALL BECAME MORE POPULAR AFTER WWII BECAUSE OF INTEGRATION. THEY MIGHT NOT HAVE LIKED THE BLACK SO MUCH AT THE TIME, THEY MAY HAVE HAD TO BE DRAGGED KICKING AND SCREAMING INTO INTEGRATION (Not so much leading, as baseball historians would romantically like you to believe, but following the military) BUT THEY SURE LOVED THE GREEN.
I would think that someone who was as knowledgeable as Costas tries to make himself appear wouldn't be aware of the confluence of all these events and not distort history to support his current point of view. Or would he?
I don't know, my take on the thing was he was upset almost to the point of whining and crying that Parker would dare challenge his pearly wisdom. I thought he made a poor response and I was surprised Mr. Parker didn't jump right down his throat.
And this guy wanted to be Commissioner? Don't let your hatred get in the way of the facts, Bobby-boy. Maybe everyone else's heroes should be as flawless as the Mick. Yeah, right.
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http://writ.news.findlaw.com/commentary/20060407_wasserman.html
Baseball, the Law, and the Rules, Part III: Barry Bonds Takes on the First Amendment,
Attempting to Use Grand Jury Secrecy Rules to Attack the New, Controversial Book Alleging His Steroid Use
By HOWARD WASSERMAN
Bonds has responded with a legal assault against Game of Shadows. But the First Amendment is likely to prove a more-than-worthy adversary for the baseball star.
Bonds launched his legal offensive on two fronts. First, he filed a lawsuit in California Superior Court against Fainaru-Wada, Williams, and their publisher, Gotham Books. He also named as defendants the San Francisco Chronicle, which published Fainaru-Wada and Williams' stories on Bonds' grand jury testimony, and Sports Illustrated. which published excerpts of Game of Shadows prior to publication. Bonds sued under California's Unfair Competition Law (Business and Professional Code § 17200), which prohibits "any unlawful, unfair or fraudulent business act or practice."
Second, he sent a letter to United States District Judge Susan Illston, who is presiding over the BALCO grand jury proceedings. The letter requests that she initiate contempt-of-court proceedings against the authors and publishers violating rules requiring secrecy in grand jury proceedings. Judge Illston already has conducted one hearing regarding leaks in this case.
In both cases, Bonds claims that Game of Shadows is based on sealed and secret grand-jury testimony and evidence. He argues that, as a witness before the grand jury, he received guarantees that his testimony and all other evidence would be confidential. And he says that Fainaru-Wada and Williams' use of this information as the basis for their book deprived him of these guarantees, and deprived the public of its faith and confidence in the confidentiality and integrity of the grand jury system. As a result, the book is both an unfair or unlawful business act under state law and contemptuous of the federal court overseeing the grand jury proceedings.
Going After Profits Alone Does Not Obviate the First Amendment Problem Here
Bonds and his attorneys, seeking to avoid First Amendment problems, focus not on publication of the book, but on the profits that the authors and publisher stand to earn from sales of the book.
The letter to Judge Illston requests a narrow contempt order requiring disgorgement of profits derived from the use of the sealed and leaked grand jury evidence (as opposed to, for example, an order jailing the journalists for their misconduct). Bonds and his lawyers insist that "we do not wish to stifle public debate about steroid use by professional and amateur athletes."
Similarly, the Unfair Competition lawsuit seeks an injunction preventing the defendants from retaining any profits from the book, but does not in any way seek to restrain publication or sale. As one lawyer told the California Superior Court, "They can speak as much as they like on this topic. They just can't make a profit."
Courts recognize that placing a financial burden on a speaker functions as a disincentive to speak--or, in this case, to write or agree to publish a book--that would, if permitted, threaten to reduce the sum total of available reporting on what even Bonds concedes is a matter of great public concern worthy of discussion and debate.
The First Amendment thus subjects laws that financially burden speech to the same rigorous scrutiny as laws that directly prohibit or restrain speech.
Morever, even if Fainaru-Wadu and Williams did not break the law in obtaining the grand jury evidence, the First Amendment does not automatically protect publication. The Supreme Court has explicitly refused to hold that the publication of truthful, lawfully obtained information on a matter of public import never can be punished. Of course, the Court never has found any interest of a sufficiently high order to outweigh free-expression interests, meaning Game of Shadows likely will be protected, as well.
The Legal Path Not Taken: Defamation
A separate question is why Bonds has not sued the authors and publisher for defamation. Some have claimed that this failure is tantamount to an admission that the book is accurate. But this is too simplistic.
In order to prevail on a defamation claim, Bonds must do more than prove the statements in the book were false (a substantial burden in itself). Under the First Amendment, a public figure (which Bonds surely is) also must prove (by the elevated standard of "clear and convincing evidence") that the false statements in question were published with actual malice--that is, with knowledge that they were false, or with reckless disregard for whether they were true or false.
This is an extremely difficult standard for a plaintiff to satisfy. But the Supreme Court has held that the First Amendment demands it--to allow "breathing space" for discussion of public issues in which some error is inevitable and to avoid the risk of media self-censorship. Thus, even if he could prove falsity, Bonds would have a difficult time prevailing on a defamation claim, such that the lawsuit may not be worth the cost and effort.
Ultimately, Bonds likely will find, in both the lawsuits and legal challenges he has brought and those he has chosen not to bring, that the First Amendment is a tougher opponent than most major league pitchers.
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