Why the DSK Accuser's Libel Suit May Be Tough to Win

The New York Post has several legal defenses to choose from

The criminal case against Dominique Strauss-Kahn is spawning a host of civil suits as those involved work to repair their damaged reputations. The first was a libel suit filed in Bronx County civil court, where Strauss-Kahn's unnamed accuser claimed the New York Post libeled her with a front page calling her a "HOOKER" reporting that she worked as a prostitute on the side of her normal housekeeping duties in Manhattan's Sofitel hotel. We mentioned yesterday that libel suits can be very hard to prove, especially in New York. Since then, some good analysis has come out explaining just why this one will be complicated, and how the Post will be able to defend itself.

New York State tends to be friendly to first amendment defenses, both freedom of the press and free speech, according to Sandra Baron, executive director of the Media Law Resource Center, who spoke to Daily Intel's Noreen Malone. "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." In addition, there's the "anti-slap" 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." Of course, as Malone points out, it would be hard to argue the woman's reputation hadn't been damaged, as she claims, by having her labeled a "HOOKER" on the front page of one of the biggest newspapers in the U.S.

As for the legal wrangling itself, the case will likely come down to two different defenses for the Post. First, as both Malone and The Hollywood Reporter's Eriq Gardner point out, the accuser, though she hasn't been named in the U.S. press, could likely be characterized as a public figure. That's important because libel law treats public figures differently from the rest of us. Here's what the Reporter's Committee for Freedom of the Press says about public figures:

Under the standard adopted by the Supreme Court in the seminal libel case New York Times Co. v. Sullivan, a plaintiff who is considered a public figure or official has a higher standard of proof in a libel case than a private plaintiff. The public figure or official must prove that the publisher or broadcaster acted with “actual malice” in reporting derogatory information. “Actual malice,” in libel parlance, does not mean ill will or intent to harm. Instead, it means the defendant knew that the challenged statements were false or acted with reckless disregard for the truth.

So the accuser, who attached her initials "N.D." but not her name to the suit, will have to show she is not a public figure, and if she can't make that case, she'll have to prove the paper went after her with "actual malice." That could be hard to do. It's a no-brainer that information stating she worked as a prostitute would be objectively newsworthy, which means the question comes down to how trustworthy the source is.

The brings us to the other defense for the Post. Malone points out the paper must either prove the woman was, in fact, working as a prostitute, or if it can't prove that, show that it had reason to believe the word of its unnamed source.

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.

Of course, that poses a big danger for the Post, which frequently relies on a single, unnamed source for its big splashy headlines. If such sources think they'll be outed in court when somebody sues over what they tell the paper, then they won't be telling the paper much more. So yes, this libel suit is going to be hard for N.D. to win, but it could also prove tricky for the Post to defend without compromising its business of reporting questionable news stories from shady sources.