Is Deadspin Making ESPN A Sympathetic Figure?

One of the weirdest media side effects of the entire Steve Phillips/Brooke Hundley saga, as it unfolds, is DEADSPIN’s curious petulance about the whole saga. As Deadspin indicated, ESPN’s refusal to divulge more information than necessary about the Phillips case a month before it broke was enough justification to air dirty laundry about the rest of the sexual shenanigans they’d heard about the WWL. It merited a post titled “ESPN: The Worldwide Leader In Sexual Depravity.” Unequivocal, that.

Deadspin Threat
(Is that so?)

What ensued? A grand total of two stories, neither about anybody that casual ESPN fans have ever even heard of, before a strangely-worded, incorrectly-termed “denouement” that resolved little. Moreover, it had many in the blogosphere - which Deadspin and Daulerio purportedly represent - questioning what the hell the point of this could have been.

First, as Deadspin explained to open this all up:

On September 9, we received a tip. Subject: “S. Phillips.” The contents? “Rumor winding it’s way around the hallowed halls of the WWL is that Steve Phillips is getting canned tomorrow for an offense on par with Harold Reynold’s misdeed.”

After a call to ESPN public relations department asking about the “rumor” I was told that “I would be wrong” to print that story because it was inaccurate. Fine. I would have been. But natural follow-up question to these types of rumors, as per give-and-take protocol, is well, what’s the real story then? Was there an incident with Phillips that Baseball Tonight people are concerned about? However I was summarily nothing-to-see-here-please-dispersed.

Daulerio expresses frustration about not being on the “export” side of this rumor, and regular readers will remember that this isn’t the first time Deadspin Daulerio has tried to inject itself himself on the whisper side of rumors-gone-viral-facts. Recall this from the summer’s blockbuster news about Manny Ramirez and steroids:

“Their client is a different Manny Ramirez. This guy lives in Medford, Mass. We ran all the background on him. It’s not the same guy.”

“Are you sure? Are you positive? Are you fucking positive?,” I said.

“Yeah. Sorry, man. Sometimes it just happens this way. At least we know for sure.”

I hung up. I slumped back to my desk. I thought I was going to puke. All of those people I’d told about the story, all of that certainty, all that excitement and confidence was now replaced by one big ache of crushing defeat. It’s been there for a few days, but I was ready to move on from it.

Then, today, the news broke. My screen lit up with IMs and Gchats from everyone: “Did you hear about Manny?”

Yeah, motherf***er. I did. Months ago.

The American schoolyard had beat me again.

In both cases, Daulerio is essentially overreacting to a half-cocked, overblown rumor he’d received weeks in advance of the real story breaking. His rumors are false and the truths are similar but far tamer, but he wants credit for… well, something, but we’re not entirely sure what. Credit for not breaking his incorrect version of the truth? What? It doesn’t make sense.

So, in true post-Leitch fashion, Daulerio dragged the names of two total who-dats through the mud without exactly explaining why it was news. After all, these weren’t people whose decision-making or public personae had shaped any noticeable aspect of the company; if anything, the sheer lack of name value that ended up associated with Deadspin’s assertions only served the purpose of making every major on-air personality look monogamous and loving.

But that couldn’t have been Daulerio’s intent. The posts were even tagged as “bring giant marshmallows cause there’s gonna be a bridge burning.” Deadspin wanted to put ESPN on blast. But they clearly didn’t have actionable material to do so, and the abortive execution of it all didn’t go unnoticed. Said Josh Q. Public of MAJORLEAGUEJERK.COM in an oft-RT’ed tweet:

Rooting for ESPN and Against Deadspin

Really, if someone were to carry out a plan to make Deadspin look bad and ESPN good, there’d be few better roadmaps than this stilted attack on the network. Sure, the last post purportedly clued readers in to specific lingo for making adultery happen, but… is the short-term benefit in pageviews really worth it? At the end of the day, Deadspin only seems farther away from a trustworthy, noteworthy source on these matters - that is, anyway, unless your opinion of ESPN hinged directly upon whether Katie Lacey is a faithful lover.

But the most compelling article about the day’s kerfuffle came from Deadspin alumnus Clay Travis, a lawyer who just so happens to excel in cases of this nature:

This falls squarely within my legal wheelhouse. And let me tell you, that’s tough to do. In fact, three weeks ago I led a Continuing Legal Education seminar on the legalities of internet writing in the 21st century, with a particular focus on liability, public figures, and the jurisprudence of blogs. So let’s dissect the issues at hand here.

First, is Deadspin going to get sued for airing the dirty laundry of ESPN?

And the short answer is, who knows? Companies file lawsuits all the time. Just because you’re sued doesn’t mean you’ve done anything wrong. All that a suit requires is a compliant lawyer and money to pay them. And let me tell you, those two things are not in short supply. The more interesting question is, what are the legal ramifications of posts such as Deadspin’s in today’s era of defamation law?

Let’s begin with the most important part of any defamation suit — if it’s true, it’s not defamatory. What’s more, the plaintiff (person filing the suit) bears the burden of proving the defamation is not true. Which means that many lawyers advise their clients against bringing suit because then the plaintiff’s private life is opened up for scrutiny during the discovery phase of the case. (See Clemens, Roger) And if you have any skeleton’s in your closet, you don’t want to get deposed on these issues. So there’s that hurdle for any potential plaintiff.

The second most important aspect of a defamation case is actually establishing whether or not someone is a public figure. Why is that important? Because if you aren’t a public figure then you merely have to prove negligence by the publisher of the false information. So if you’re a virulent or snarky writer you want to go after public figures. Fortunately for Internet writers, the vast majority of blog posts deal with public figures. And New York Times v. Sullivan has enshrined an awful lot of protection for blogosphere publishers. In that famous case from 1964, the Supreme Court ruled that in order for a public figure to recover for defamation they must be able to prove that the statement was made with “actual malice” i.e. a. a knowledge of falsity or b. a reckless disregard of whether it was true or false.

The rest is predictably eye-glazing legalese, but even this snippet should give you a sense of what we’re dealing with here - it’s not very easy to defend Daulerio’s editorial decision as “above-the-board” and assume it was made with no prior knowledge as to the falsity of the rumors he posted (though the fact that he stopped at two stories about no-name employees means Gawker probably lives to see another day).

Moreover, even if it was legally allowed, the perception and reputation of Deadspin as the whimsical grandpappy of sports blogs started by Will Leitch is further eroded; anymore, it’s a poorly-executed Sports TMZ. Which, fine, whatever.