Roger Cossack, ESPN's legal expert, came on Sportscenter and said that this lawsuit had about a 0% chance of winning. He also questioned why Bonds wasn't suing for libel instead of suing for false business practice.

As someone in the comments section of my blog observed, Bonds is a public figure, and as such has not one, but two hurdles to cross for a libel suit to work: first, the allegations have to be untrue. Second, the authors have to be working with malice aforethought or that they had no reason to believe their comments were untrue. Given that the book is based on extensive affadavits, sworn testimony, and the like, it's highly improbable that Bonds could clear that threshold either. Thirdly, if the suit is filed in California, it may be subject to anti-SLAPP statutes.

All that said, the real problem here is that the underlying foundation of the book is extensively -- and illegally -- leaked federal grand jury testimony. That is indeed a crime, but since it would appear that the criminal in that instance is very likely someone highly placed in the federal prosecutor's office, the chances of actual charges being filed are about zero.

Rob---great comments. Guess that's why they're not filing the libel suit. Absolutely no chance of success!

"What we're saying is, who are the real cheaters? They are the ones who are using these illegally obtained materials," Rains [Bond's lawyer] said.

I really wouldn't go there if I were representing Barry Bonds in a case concerning steroids. Please.

Some quibbles with Rob's comment. The libel standard is not "malice aforethought," that's a doctrine of criminal law. The actual standard from New York Times v. Sullivan is "actual malice." But the term malice is a bit of a misnomer. Regardless, what it means is that a reasonable person could not in good faith believe that what they published was true. Second, if the facts were untrue, the publishers/writers would still be protected by the first amendment if the information was relied upon in good faith.

We have an extraordinarily high constitutional bar to libel in our country. If you're a public figure, and Bonds does qualify as a public figure, the burden is on him to prove that authors had "actual malice."

Finally, judges hold people in contempt, not lawyers for the opposition.

it's pretty sad that a person can write anything they please about a "public figure" without any worrying that they have to tell the truth because they basically can't be sued if they don't.

proving malice is i guess as impossible as getting a man pregnant

so even IF barry could prove he never did drugs there's nothing he could do and he'd be wasting time and money in any lawsuit, so why bother

Actually, Lisa, I would argue that it's pretty great. I wouldn't want to see a weakening of the First Amendment.

Proving malice is not nearly as impossible as getting a man pregnant. But considering Bonds' situation and the sources in question, the authors were certainly relying on information in good faith. For a court to even approach a verdict of guilty in a libel case, the information has to be false. In Bonds' case, that's not true.

I think it should be pointed out that this isn't a libel case.

Good for Barry.

He may be a pond scum, but I have been aggravated by the way all these sealed Grand Jury tapes have been leaked. When a court of law tells people they can testify with complete confidence, that confidence should not be breached.

I do agree, grand jury testimony should not be leaked, but on the other hand Bonds got a nice little pass because of his stature and then the defendants got a virtual slap on the wrist (I think 6 mo.) for all their transgressions. Now BLB is crying because his seemingly sweetheart deal wasn't swept under the rug like he wished. I'd love to see this open the suit again if Bonds lied to the GJ.

I'd like to see it all out in the open, but the information I have is that the government has nothing that would stand up in court, which is why nothing has proceeded from the testimonies.

I think that Barry Bonds by not filing a libel suit is admitting his guilt because he knows he cannot refute the charges so instead he is trying to hurt the authors in the pocketbook in retaliation. This is a retaliation suit and nothing more. Bonds does not want to be dragged into a courtroom and testify knowing lawyers would have a heyday with him since they would be armed with so much documentation Bonds could not begin to prove the charges wrong. Bonds has little chance of winning this suit and even less chance of winning a libel suit if he chooses to pursue that course of action in the future.

Sam, Don't cry for Barry. Prosecutors regularly leak when case plays out in the media. This is SOP. That does not make it right, just how the cookie crumbles. He is not getting a raw deal. If he and his mouthpieces would have shut up, instead of contradicting the government's evidence and sworn testimony, perhaps the Feds would have taken the high road. Stranger things have happened. If he has a leg to stand on, i.e., that he was not a junkie, he should pursue all these writers in court. He will lose without a doubt. But he will have the opportunity to present his case, and take the stand. Short of that he should stop bitching and act like a man. Curious, re: "but the information I have is that the government has nothing that would stand up in court." Where did you come across that piece of information? The government has a large amount of evidence that would stand up in court. It is presented in the recent book release. Based on the fact that Anderson and Conti were not compelled to testify, as yet, against Bonds it seems more likely the Feds have given him a pass on any charges.

The problem with the case is that you can't do an end-run around libel laws by filing under the Cal. Unfair Comp act. The anti-SLAPP statute would apply no matter what the cause of action is. And while it may be illegal for those involved with a grand jury to leak information, it is -- to the best of my knowledge - not illegal for a reporter to whom it is leaked to publish it subsequently. (And, incidentally, any person who testifies before a grand jury is free to tell whoever they want about hat happened inside -- though the prosecutor will invariably ask them not to.)

Mr. Capybara hit what seems to me the most important point here. I understand that if I'm an officer of the court, I can't talk about what went on in a grand jury. But if I'm Joe Reporter, and someone with knowledge tells me what happened in a grand jury, do I have any obligation to keep that secret? I understand the person who told me broke the law by doing so, but I don't see how I've broken the law by telling others what someone told me. Am I wrong?

No, you are not wrong.

One thing I've wondered about this case; is this a way to find out who leaked the information? Let's say it was a prosecutor, and during the course of this law suit that fact comes to light. I would think it would be very difficult to try Bonds further if the prosecutor committed a crime by leaking the information.

There is no privilege for reporters as there is for doctors and lawyers. While as a rule they don't give up their sources, there's nothing that protects them from legal action if they don't. So, if Bonds lawyer deposes them, and asks for the name of the source, it's quite possible they'll find themselves in contempt of court if they don't answer.

I don't know how likely this scenario is, but Bonds' people may not be that interested in winning the case, they may just be interested in protecting Bonds from future prosecution by discrediting the government lawyers.

Abe,

California’s Unfair Competition Law is exceedingly broad. It generally allows a private party to sue for any business practice that is otherwise forbidden by law, even if that law does not itself include a private right of action. It also allows suit for business practices that are deceptive, even if they do not amount to actual fraud, and for business practices that are "unfair," even if they are not otherwise unlawful. Whether a business practice is prohibited by the Unfair Competition Law must often be determined on a case-by-case basis.

California’s Unfair Competition Law also includes a prohibition against false advertising that overlaps that of California’s False Advertising Statute.

I am a lawyer.

David, that may be the angle. But this is not the type of case, civil, minor, and obviously weak, where a sane judge would levy severe sanctions ala Judith Miller. They will never find the leaker. I don't think Bonds gets good legal advice, could poster CSM be his man?. It appears he got very cute, or lied in his grand jury testimony. Comparatively, Giambi's guy got it right. If he is attempting to pressure the Feds it will backfire. Right or wrong they always get last licks.

We must boycott Major League Baseball until Barry Bonds is banned! We cannot let him break this record by cheating!

http://boycottbonds.blogspot.com/

OK

name just ONE libel case in the past 25 years where the libeled "public figure" won

well, i can't find any.

and i do NOT believe it's not because public figures NEVER libeled.

it's because the laws set up so anyone can say anything they want about a "public figure."

and the "leaked" grand jury testimony was not some person's memory of what was said. it was the transcript. which means it was an "officer of the court"

and that person should be disbarred and put in prison. that's a MUCH worse crime than doing steroids.

Lisa, love your commentary; but what world do you live in? This happens all the time. It is standard operating procedure, SOP. The world is an ugly place. They did it in all the recent corp cases, leaks re Rigas, Ebbers etc. This is how business is done. Look at the Grasso depos right now. Craig Miles knows what is going on, ask him. Outside of that discussion, if the ass formerly known as Bonds wants to claim innocence the least he can do is defend himself. Instead he pimps his kids. Ken Caminiti lead a better life, RIP. You do good work, but these comments do you a disservice. They will not get disbarred any sooner than you will get busted for jaywalking. regards