November 08, 2011 2:34am PT by Eriq Gardner, THR, ESQ
Did a Former ESPN Exec Make a Big Mistake Suing Over a Crude Erin Andrews Story? (Analysis)
Last week, former ESPN executive Keith Clinkscales sued a colleague who allegedly shared a false story about Clinkscales masturbating on a flight while sitting next to ESPN reporter Erin Andrews. The complaint alleging defamation is rather thin -- just six pages -- and raises a question about whether Clinkscales made a smart move in acting so quickly to bring this matter into a New York federal court.
The legal action took place just as the sports blog Deadspin was investigating what happened on that flight.
Clinkscales, who until recently was a senior vice president of content development and enterprises at ESPN, decided he didn't want to wait to read about the claims on Deadspin. So he took action by filing what's being termed as a "pre-emptive" lawsuit.
What intrigues us here is not what happened on the plane, but rather what exactly the ESPN executive hoped to gain by taking this tack.
By filing the lawsuit so rashly, Clinkscales pretty much assured that the strange masturbation claims would be covered in the media and across the blogosphere. If the Herman Cain sexual harassment coverage has taught us anything, it’s that innuendo becomes ripe for media so long as there are official charges lodged or money paid out. The difference between salacious gossip and investigative reporting has become, for better or worse, a document trail.
Maybe Deadspin would have published the Clinkscales story anyway.
But Clinkscales’ supposedly "pre-emptive" lawsuit did nothing to change that. No injunction was requested. The legal claim was unlikely to scare away Deadspin from the story nor substantially change how other media outlets were going to treat a raunchy allegation that had Andrews as a character.
The only thing the quick lawsuit might have changed is a calculation of damages, if it’s shown that the defendant Joan Lynch did indeed maliciously spread lies about Clinkscales, and the case against her gets that far. Clinkscales may say that Lynch’s gossip-mongering hurt his reputation, but can he prove that the story that did the most to damage his image would have ever published had he not first filed the lawsuit?
In filing his claims, Clinkscales gave Deadspin a convenient news peg to its story, in all probability insulating the website from a separate defamation claim and raising the issue whether he contributed to, rather than mitigated, the exposure of the masturbation story.
The defamation claim has become an outlet for sensitive public figures to strike back against unsavory news stories, but these type of cases also tend to incite vast news coverage. It might feel good for the plaintiff, but we wonder if this is an error both on a PR and legal front.
Here's a copy of Clinkscales' allegations, which we'll admit to have never thought of sharing had it not become a federal lawsuit: