Absence Of Malice

absence of malice

This post isn’t about the 1981 Paul Newman-Sally Field movie although it’s a good flick. It’s about the showdown between Gret Stet Doctor/Congressman Charles Boustany and journalist/investigator/Adrastos acquaintance Ethan Brown. I’ve written about Ethan’s new book Murder in the Bayou twice since its release, here and here. It’s a helluva read. More importantly, it is carefully researched and documented. It is a true crime book NOT political opposition research, better known as oppo.

Boustany is running for David Vitter’s Senate seat, which makes the allegations against him in the book even more amusing. It *is* the hooker seat, after all. With great fanfare, Boustany filed suit against Ethan and his publisher:

 “The law does not allow someone to slander another person to sell books, not even public officials,” Boustany’s lawyer, Jimmy Faircloth, wrote in an emailed statement to TPM.

“Mr. Brown either made up the story or he’s peddling political garbage that he knew or should have known is false,” the statement continued. “It’s easy to spread hateful lies about others, but it’s not easy to defend it under oath while facing the prospects of perjury. This lie will be exposed and those responsible will be held accountable.”

Time for me to put on my lapsed lawyer/legal analyst hat. It’s on the tight side, but it still fits. On to that confusing email. Boustany’s mouthpiece talks about slander in it. Say what? Slanderous statements are oral/verbal. I guess Faircloth is referring to teevee and/or bookstore appearances. Beats the hell outta me. This is a defamation case, which involves written statements of an allegedly libellous nature. A lawyer named Goodcloth would know that…

Notice that Faircloth calls Ethan’s book “political garbage” thereby implying it’s oppo gussied up in book form. Repeat after me: it is not. While researching the Jeff Davis 8 murders and corruption in that corner of Southwestern Louisiana, Ethan stumbled into the Boustany story:

In Brown’s book, which traces the story of eight sex workers who were murdered in Jefferson Davis Parish between 2005-2009, the veteran journalist cites multiple anonymous sources who alleged that Boustany was a client of several of the women who were later found dead. Brown also reported there was “no evidence” that Boustany had anything to do with the murders. One of Brown’s sources was a former sex worker in the parish, another was a friend of the victims, and the third was an unidentified individual who told a police task force investigating the murders that Boustany had a sexual relationship with at least one of the so-called “Jeff Davis 8.”

The prostitution allegations first drew national attention after Boustany’s wife, Bridget, sent an email accusing her husband’s Senate opponents of spreading “lies” about him, prompting them to issue denials. Once those allegations were widely circulated, however, Kennedy and other candidates seized upon them as a stain on the Republican lawmaker’s “character.”

In “Murder in the Bayou,” Brown also reported that a longtime Boustany staffer, Martin Guillory, owned an inn in the town of Jefferson where many of the murdered women met their clients and that Guillory had met “one or two” of the victims before their deaths. Boustany’s office said Guillory concealed that information from them, and Guillory left his post as a field representative soon after the book came out.

TPM got one bit wrong, the Boudreaux Inn was located in Jennings, which is where much of the criminal activity described in the book took place. It connects quite a few of the book’s cast of characters and wasn’t just put in gratuitously to damage a boring Congressman’s political prospects. Ethan relies on anonymous sources for a good reason: people who know something about the murders and grotesque police corruption in that parish have a tendency to meet violent ends. I guess Ethan should be obliged to reveal his sources in order to satisfy Bridget Boustany. If the worst were to happen to the sources, I suspect she’d disclaim any responsibility. It reminds me of my favorite passage in The Great Gatsby:

It was all very careless and confused. They were careless people, Tom and Daisy – they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it was that kept them together and let other people clean up the mess they had made.

I was involved in an epic, and ultimately annoying, discussion of this matter on a friend’s Facebook page. As is typical of social media,  the people with the strongest opinions on the Boustany allegations had not read the book. I have. That endless FB thread reminded me of the circular discussions of Martin Scorsese’s 1988 film The Last Temptation of Christ. The people who were convinced the movie was blasphemous hadn’t seen it. When called on this, they said they wouldn’t see it because it was blasphemous. It’s our old friend Catch-22.

Speaking of “political garbage,” Boustany’s suit has everything to do with politics and very little to do with the law. The case is a loser because he’s a public figure. Here’s a solid definition of the standard a public figure has to meet in the United States:

In the context of the First Amendment, public officials and public figures must satisfy a standard that proves actual malice in order to recover for libel or slander. The standard is based upon the seminal case of new york times v. sullivan, 376 U.S.254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), where the Supreme Court held that public officials and public figures cannot be awarded damages unless they prove that the person accused of making the false statement did so with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement. Demonstrating malice in this context does not require the plaintiff to show that the person uttering the statement showed ill will or hatred toward the public official or public figure.

Actual malice is a high standard, one that Doctor/Congressman Boustany will have difficulty meeting. The irony of all of this is that Bridget Boustany introduced the story into the campaign. It might have been wiser for her to not hit the send button: Alicia Florrick would have had the good sense to consult Eli Gold first. It has opened a proverbial can of worms and once they start wiggling across the floor they’re hard to catch. Sounds like a job for Oscar and Della Street.

Time to put my political pundit hat back on. There, that’s much better. I’m not sure how this will play out during the campaign. It’s the first interesting story I’ve ever seen connected to Boustany who is a rather dull and generic Conservative Republican. It *has* increased his name recognition somewhat but not in good way. I neither wish his candidacy ill nor well. The Republicans in this race are all terrible although Boustany *is* slightly better than past malaka of the week John Fleming, Colonel Mayonnaise, or the erstwhile Gret Stet Fuhrer.

Back to Murder in the Bayou. It’s an excellent book. It’s a gripping true crime story with a dose of social commentary. Ethan comes up with some intriguing theories about the sex worker slayings as well as exposing egregious law enforcement corruption. In classic Louisiana fashion, the two so-called reform sheriffs elected in Jefferson Davis parish since 1992 have been worse that the guy who pled guilty to corruption charges. Same as it ever was. Same as it ever was.

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