I'd like to hear from a FReeper lawyer about this. If Kerry files suit against O'Neil, isn't it possible he could get an injunction to prevent sales of the book and media appearances by the swifties pending legal resolution?
not a lawyer, but the second Kerry sues swift vets there will be an immediate motion for discovery of all of Kerrys records and his diary and those of his crewmates, scrutiny which IMO Kerry cannot live with..they likely would be leaked while the copies were still warm...
I had the same thought. However, I do think that the fact that they are trying to silence them will not set well with Americans all across this nation.
Not a lwayer,b ut ist is too late to stop the book. It is out
Possible, yes. Probable, no.
To get an injunction, Kerry would have to show irreparable harm to his reputation and either a likelihood of success on the merits or "sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward(s)" Kerry. Hammer v. Trendl, 2003 U.S. Dist. LEXIS 623.
What's working against Kerry is:
1) Political speech is protected more than just about anything under the First Amendment. The right to criticize the government was partially what the American Revolution was all about so our forefathers sought to protect it in the BoR as almost sacrosanct,
2) As a public figure, in order to prove a libel, Kerry is going to have to prove "actual malice," which basically means that the swift boat vets knew that their statements were false and nonetheless published them anyway.
3) To that end, Kerry would provide an affidavit alleging that the statements are false. The Swifties would file affidavits stating that what they said was true as truth is an absolute defense to a libel action.
4) It'd be extremely difficult, if not impossible for Kerry to prove "actual malice" just on the basis of his affidavit alone. There would be a question of fact (e.g. factual dispute) over whether the uttered statements were true because you would have conflicting affidavits. To that end, I couldn't see a court making such a determination without at least conducting some discovery and/or a hearing and hearings take time.
5) Even if Kerry were to try to get an injunction on an expedited basis on the basis of his own affidavit, if memory serves (and it's been a while since I've dealt with this issue)notice usually has to be given to the party you are seeking to enjoin before an injunction hearing can be heard. Even if a judge gives the swift vets an hour of notice, they'd have counsel there since they are prepared to fight. They also have extensive affidavits already on file that could be used to defend a libel suit.
6) You have four days until the book is allegedly published, which makes it difficult to do anything to stop the publishing of the book from a practical standpoint.
7) There has been discussion ad nasuem in the media about the book already, so there is a question whether Kerry could be further irreparably harmed in the first place from the book being published.
With that said, courts can also be as partisan as the hack of a judge that is presiding in the courtroom. If Kerry were to play the "ping pong ball lottery" in a Federal courthouse and get a wacko leftist district court judge, all bets could be off.
However, in most likelihood, Kerry would never win a libel suit against the swift boats, and, more importantly, would never file one during the campaign because he'd lose in the arena of public opinion since he would make his service (and lack thereof) an issue. Nothing good can come from that except to distract from the Kerry message of the day of flipping and flopping.
I am sure other lawyer-type FReepers who are more knowledgeable on some of the inner workings of preliminary injunctions (especially those injunctions that are asked for when a case is first filed) and may know more than myself, but I don't think a preliminary injunction would pass the smell test to most reasonable-minded judges.