Last year, when Roger Clemens first filed suit, I noted that one of the reasons why defamation lawsuits are suckers’ games for the PR-conscious is that so often the outcome is determined by things other than whether the actual statements at issue are true or false. There are many exceptions and nuances to defamation law, and there’s a huge and often impossible-to-meet burden of proof when public figures like Clemens are involved. The result: oftentimes even lies, if properly-intentioned or uttered in a certain context, are deemed acceptable under the law.
I’m fine with this, of course, because these exceptions and nuances are what help protect free speech. However, if you’re a high-profile defamation plaintiff they can be dangerous, because the general public — about whose opinion you are concerned — is very likely to view even a procedural or technical loss as vindication of the allegedly defamatory statement. Put more simply, when it comes to public opinion, it’s about wins and losses, and even if a loss is due to something other than who was or wasn’t actually lying, the public will deem the loser the liar.
A U.S. District judge in Houston dismissed most of Roger Clemens’ defamation lawsuit against his former personal trainer Brian McNamee Thursday, agreeing that the court did not have jurisdiction to hear most of the case and that McNamee’s conversations with George Mitchell were protected by his immunity deal with the government.
Judge Keith P. Ellison agreed that because McNamee accused Clemens of using HGH and steroids while he was in New York speaking to Mitchell and then repeated the accusations to SI.com reporter Jon Heyman, who is also in New York, the Southern District in Houston does not have jurisdiction.
No, the suit is not totally dead, but given that Clemens has learned another hard fact of defamation lawsuits in the past year — that bringing one often brings one more bad publicity than having let the original defamatory statement lie in the first place — he would be well-advised to cut his losses and quit now. He’s Roger Clemens though, so he’ll probably just rub some Icy Hot somewhere, bark at his lawyers and continue fighting on. We need people like that in this country — you never know when we may be invaded by the Martians or something — but it won’t be a good thing for him personally.
Anyway, assuming things do end here, Clemens is way, way worse off than he would have been had he never started this business to begin with. Despite the fact that nothing in this court’s ruling actually establishes that McNamee was telling the truth about Clemens, Clemens’ loss on technical grounds will forever be treated by the public as confirmation that he was the liar. And maybe he was the liar — I’d say the odds are in favor of that — but if he didn’t file this suit he could have at least gone through life informally telling people his side of things and working quietly to rehab his public image.
Such a tack would have been tantamount to a no-decision in which he pitched poorly but no one really blamed him for the ultimate outcome. Those things are forgotten and, rightly or wrongly, aren’t held against a guy by the fans at large. Now? There’s a big L next to his name, and people will always consider him to be the loser, even if he had no run support and the runs were unearned.