The National Enquirer is in the news rather than reporting it — not for printing that Elvis is alive and well, but for its alleged role as "a dirty-tricks shop for Donald J. Trump in 2016," as The New York Times put it in an article that described the supermarket tabloid as "the most powerful print publication in America." The Enquirer served as a propaganda rag for The Donald, first targeting Ted Cruz during the primaries and then amplifying anti-Hillary conspiracy theories like "PizzaGate," the ridiculous stories that candidate Clinton was sleeping with Huma Abedin and that she had hired a "hitman" to murder people who annoyed her.
It paid $150,000 for the story of a former Playboy model who said she had an affair with our current president — so they could bury it. (They call this a "catch-and-kill" deal.)
Even for the pond-scum standards of The National Enquirer, this is super sleazy. Mainstream media outlets like the Times are pointing out how gross and yucky the Enquirer is, and they're right to do so.
What these august guardians of the Fourth Estate are not as eager to talk about is how, when it comes to a little-known law with a massive effect on libel and defamation law, respectable print institutions like The New York Times are on the same side as such exemplars of yellow journalism as The National Enquirer.
Twenty-eight states — including many of the most populous — have laws prohibiting strategic lawsuits against public participation, or "anti-SLAPP" laws, ostensibly designed to protect newspapers, radio and television outlets from being sued for libel or defamation.
Their real purpose is to allow the media to get away with murder.
Let's say a newspaper prints an article that destroys your reputation: For example, you're a teacher, and the piece says you sexually assaulted students. Now let's say that you're innocent. Not only that, you can also prove you're innocent. So you sue the paper for defamation or libel.
In the old days, your lawsuit would head to discovery and then to trial, where a jury of your peers would weigh the evidence. If 12 men and women good and true agreed that the paper had lied about you and hurt your reputation, they might award you damages to make up for lost wages and other financial harm. After all, even a verdict in your favor probably wouldn't cause a school district to be willing to hire you.
Now we have anti-SLAPP. If you live in a state with one of these pretzel-logic statutes, the odds of getting justice are very low. It doesn't matter how brazen the lie about you was or how much it hurt you or your livelihood. Even if you can prove the paper knew what they said about you wasn't true when they decided to print it, an anti-SLAPP motion will probably stop you dead in your tracks — assuming you can find a lawyer willing to represent you in a state with an anti-SLAPP law in the first place. As a defamation law expert in California told me, "Defamation law is effectively dead. There is no redress."
Here's how it works. First, you sue. Then the paper that slimed you files an anti-SLAPP motion. Discovery — subpoenaing each other's documents, deposing witnesses on both sides — halts before it begins. So you can't collect evidence. Years pass. Legal bills mount. Without access to documents and witnesses you have to convince a judge — not a jury — that your case doesn't involve "privileged communications" — whatever that is — and that you'll probably prevail before a jury. Of course, the judge doesn't know that. Odds are you'll never see that jury. Here's the best part: After the judge tosses your case, you — the victim! — have to pay the legal fees of the publication that tried to ruin you.
Because they violate the centuries-old right to trial by jury, two state supreme courts — in Washington and Minnesota — have gotten rid of their anti-SLAPP statutes, ruling them unconstitutional. But there's still a long way to go before sanity prevails; if anything, the momentum is for more states to legalize defamation with anti-SLAPP laws.
Because anti-SLAPP motions are themselves the subject of years-long litigation and appeals, trial lawyers rake in hundreds of millions of dollars a year from the anti-SLAPP racket. The only victims are plaintiffs forced into bankruptcy.
Run a Google search for "criticism of anti-SLAPP laws" and you'll likely come up empty. News articles about anti-SLAPP contain countless quotes in favor, none against.
Media companies love anti-SLAPP laws because they allow them to run "fake news" day after day without the slightest worry of being held accountable for their perfidy. Even liberal former Labor Secretary Robert Reich has fallen for anti-SLAPP propaganda, which holds that such laws help poor individuals defend themselves against frivolous lawsuits filed by deep-pocketed corporations. In fact, the opposite is more often true.
The Enquirer recently hit the Playboy model in the Trump case, Karen McDougal, with an anti-SLAPP motion that would force her to pay its legal fees.
For my money, the most outrageous California example of abuse I've read recently is former Trump attorney and fixer Michael Cohen's anti-SLAPP motion against Stormy Daniels. Cohen said Daniels lied about having an affair with Trump — which is plainly false.
Cohen has been sentenced to three years in prison for arranging hush-money payoffs to Karen McDougal and Stormy Daniels. Too bad he won't be bunking with the publishers of The National Enquirer and The Los Angeles Times.
Ted Rall, the political cartoonist, columnist and graphic novelist, is the author of "Francis: The People's Pope." He is on Twitter @TedRall. You can support Ted's hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.