Why A Federal Judge Was Right to Dismiss Former Congressman Gary Condit's Most Recent Defamation Suit Against Journalist Dominick Dunne For Comments Relating to Chandra Levy's Murder

By JULIE HILDEN
Friday, Jul. 17, 2008

Where does opinion end, and fact begin? That was the question U.S. District Judge Peter K. Leisure of the Southern District of New York had to answer when contending with a motion by journalist Dominick Dunne to dismiss a defamation suit by former Congressman Gary Condit.

Condit argued that Dunne had falsely insinuated that Condit had played a role in the 2001 murder of Washington, D.C. intern Chandra Levy. Dunne argued, in response, that what he had said was First-Amendment-protected opinion. On July 8, Judge Leisure ruled in favor of Dunne.

Judge Leisure was absolutely right to rule as he did – as I will explain in this column. Still, Dunne ought to continue to tread carefully in speaking about this case, for he is walking a very thin First Amendment line.

The Basis for the Suit: Dunne’s Comments on “Larry King Live”

In a previous suit, which I discussed in a prior column, Condit had sued Dunne for slander based on prior comments Dunne had made, suggesting a possible connection between Condit and the Levy case. That suit was dismissed, and the parties then settled. However, comments Dunne made on “Larry King Live” on November 16, 2005 triggered another suit, for slander, from Condit—which led to this month’s ruling.

On “Larry King Live,” Condit was interviewed by guest host Bob Costas. (The transcript of the interview is attached to the district court opinion, which can be found here.) The general subject of the interview was media coverage of, and speculation about, high-profile murders – not just Levy’s but also others. During the interview, Costas repeated a story that Dunne had previously told relating to the Levy murder, but Costas got the story wrong in certain important respects.

In fact, Dunne had said that a person identifying himself as a “horse whisperer” had called him and told him that four men had kidnapped Levy, drugged her, and put her on a plane (presumably so they could dispose of her body). (In retrospect, the story seems plainly false, for Levy’s body – far from being dumped where it could not be found – was subsequently found in a well-frequented park near her home in Washington, D.C.)

Costas claimed, inaccurately, that Dunne had also suggested that “perhaps Condit had been indirectly involved, that he knew the reason why Levy had been killed, that he had arranged to have her murdered.”

Dunne interrupted Costas, insisting “I never said that anywhere.” Costas then apologized, and quoted verbatim what Dunne had previously said: “I don’t think [Condit] killed her. I think he could have known it was going to happen.” (These were among the very comments that triggered the first lawsuit.)

After some back-and-forth with Costas, Dunne made clear what his views on Condit and the Levy murder are, as of today: Dunne isn’t claiming that Condit had prior knowledge of the murder, but, he said, “I think [Condit] knows more than what did happen than he has ever said.” Similarly, at another point, Dunne said he believed Condit “knows more than he has ever told about” Levy’s murder.

The District Court’s Dismissal of the Claims Based on Dunne’s Repetition of the “Horse Whisperer” Story

Judge Leisure began by making short work of Condit’s claim based on the “horse whisperer” story itself. The judge reasoned that “reasonable viewers would understand that Dunne’s summary of the story was merely in response to Costas’s own summary of Dunne’s prior statements” – rather than an “assertion of objective fact,” vouching that the story was true.

Judge Leisure gave significant weight, as well, to Dunne’s emphatic denial that he had meant to implicate Condit in the horse whisperer story. (At various times, Dunne protested, “I never said that anywhere”; “I didn’t say Condit was aware.”; and “Gary Condit, I did not name in connection with that.”)

It’s a good thing for Dunne that he so strongly disclaimed the Condit/”horse whisperer” story connection, for otherwise Judge Leisure’s ruling on this point might have conflicted with the principle that the repetition of a slander (or libel) is still a slander (or libel). As common sense dictates, one does not have to be the first one to speak a slander to be held responsible for the slander in court – although if a statement is just one among a chorus of slander, that fact may greatly diminish the damages that can be attributed to that statement alone. (The same rule applies to libel – written defamation.) Thus, if Dunne had simply retold the horse whisperer story, without strongly disclaiming it, he might have triggered a valid defamation suit – despite the show’s couching its topic as speculation about crime, rather than crime itself.

In other words, moving a discussion to a meta-level does not necessarily mean the discussion cannot trigger a valid defamation claim. Ironically, this means that, in theory, even the interviewer, Bob Costas, might have been sued for repeating the horse whisperer story if Dunne had embraced the story rather than disclaiming it. Such a suit would be unusual and very unlikely to win – plaintiffs virtually never sue interviewers, and courts wouldn’t like it if they did. Yet it might also be technically valid under the rule that a repetition of a slander is still a slander.

The District Court’s Dismissal of the Claims Based on Dunne’s Statements that Condit Knows More Than He Has Said About the Levy Case

After dismissing the claims regarding the horse whisperer story, Judge Leisure went on to consider claims based on other statements by Dunne during the Costas interview: the statements that “I think [Condit] knows more than what did happen than he has ever said,” and that Condit “knows more than he has ever told about” Levy’s murder.

Notably, in the interview, Dunne shifted ground, backing off from his prior comments about Condit. Costas quoted Dunne accurately as having previously said that Condit “could have known it [presumably, Levy’s murder] was going to happen.” Now, on “Larry King Live” Dunne suggested to Costas simply that Condit generally possesses some knowledge that relates in some way to the murder that Condit is keeping to himself.

This shift was wise: Saying that a person, in fact, knew about a murder beforehand and did nothing is definitely slander. Saying that a person “could have known” about a murder beforehand, as Dunne originally did, might possibly be deemed slander by a court (though it should not, because the “could” marks it as a guess, not a fact). However, saying that one “thinks” that a person knows something more than he is saying about a murder virtually never will be deemed slander by a court.

That last statement, as Judge Leisure held, is clearly one of constitutionally-protected opinion. It neither stated any facts about Condit and Levy’s murder, nor implied that Dunne knew damning facts on that score to which he was not making “Larry King Live” viewers privy. It thus was damaging to Condit – Dunne is a veteran journalist, and the public gives his views weight – but not illegally so.

In theory, this case should be an illustration of how our system works well to enforce First Amendment protection for speech. In fact, it is something less than that – for Dunne continues to have to pay attorneys to vindicate his rights. This is especially concerning because Dunne is simply an individual, albeit a wealthy one; he appeared on “Larry King Live” on his own behalf, not as a commentator for any media organization, and there is no deep-pocketed media company listed alongside him in the caption of this case.

As journalism increasingly moves to the Internet, more and more journalists may find themselves working without the backing of a deep-pocketed corporation – whether as independent bloggers or for smaller, less wealthy sites. More, too, may find themselves sharing the plight of Dominick Dunne – enjoying and rightfully invoking First Amendment protection, but paying dearly for it, too.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.