Try Hard II: Try Harder

Having gorged on Gawker’s freshly slain body and retreated to his cave for a little bout of hibernation, Charles Harder is back, baby! And he’s bolder than ever.

The lawyer who unexpectedly forced New York gossip site Gawker into bankruptcy, Harder has set his eyes on taking down a brand new target: the MailOnline.

The MailOnline recently found itself on the receiving end of a new lawsuit prepared by Harder, on behalf of First Lady Melania Trump. He is making claims of defamation after they suggested she may have once worked as a prostitute, and it is his avowed intent to take them for $150 million for spreading such slander.

Just to put that figure into context quickly: in the case where Gawker published uncensored and illicitly gained footage of Hulk Hogan engaged in full penetrative sex with the wife of his former best friend, Harder filed a suit asking for $100 million in damages.

In contrast, the MailOnline didn’t publish any such leaked video of Melania. They didn’t publish any previously unseen photos of Melania. They heavily implied that Melania may have previously worked as a high-class escort, yes, which is enough to take action. But enough to take $150 million worth of action? Hmmm.

We’re aware that the media class got its predictions for the Hulk v Gawker case hopelessly wrong, and we should maybe shut up and watch how this all plays out before we risk embarrassing ourselves with making more forecasts.

However, we think that Harder’s case might struggle here for three major reasons.

1/ Lack Of Malice

One of the requirements in an American defamation suit is that you have to prove malice. In the UK you can find yourself getting stitched up for inadvertently implying something with careless phrasing. In the States though, the plaintiff has to show that there was some sort of concerted effort to inflict damage on them.

That being so, if you’re just making shit up for a laugh, you’re pretty much golden as far as the First Amendment is concerned.

That’s why American magazines like the National Enquirer can write stories as unhinged as this…

…without any real legal blowback.

2/ Lack Of Credibility

For reasons that are increasingly unclear, the Daily Mail does have a reputation as a serious news organisation and the words that appear in their printed paper do hold a certain sort of weight.

The MailOnline however is better known for its signature brand of extremely pedestrian clickbait – featuring such stories like “Woman Avoids Puddle”…

…”Woman Wears Bikini”…

…and “Child Attends Party”

They have also suffered a rather humiliating indignity recently, when the board of Wikipedia editors deemed the Daily Mail to be insufficiently reliable to be used as a citation source on their site.

Being considered too inaccurate for Wikipedia is a pretty damning criticism, but if the Mail is prepared to wear it and own it, a defence of “Nobody believes us; we’re generally considered to be extremely unreliable” may undermine an earnest case for $150m of damages.

3/ A Change In Motivation

The first draft of this particular suit was filed with the New York County Court on February 6th and was rather sharply criticised for its claims that these defamatory statements had prevented Melania from being able to turn a profit on her position as First Lady.

We’re paraphrasing slightly, but only just.

This is what the original draft said.

Presumably realising how badly this approach was going to play – both with the judges and the public at large – on February 17th Harder resubmitted a new draft. This new version scrubbed all references to ‘commercial harm’, Melania’s damaged potential for profit and any reference to her being the First Lady.

They’re some significant edits. Compare the original opening…

…with the revised version.

While the new version will help to calm any talk of corruption (and may potentially reassure people that the entire Trump family isn’t just using the Office of the President for private profit) it does lower the lawsuit’s stakes somewhat.

It’s fairly easy to justify a claim of $150m when you can specifically point out exactly where you’re going to lose the money – as the first suit did.

When you can’t specifically admit to those streams of revenue though, it suddenly seems like a little more of a reach.

The silver lining to all of this is that whoever loses, there is no real bad result here. Either the Daily Mail takes a $150 million hit and we can all bask in the warming schadenfreude that will provide, or Team Trump takes another battering at a point where its spirit is in the doldrums and we can watch Donald flip his wig again.

Whichever happens, Charles Harder’s reputation will doubtless survive – and we look forward to seeing what ambitious suit he decides to take up next.