Kos Counter-Attack on TNR

Kos responds to the growing controversy over “Kosola” in a rather bizarre post.

TNR and its enablers are feeling the heat of their own irrelevance and this is how they fight it — by undermining the progressive movement. Zengerle has made common cause with the wingnutosphere, using the laughable “kosola” frame they created and emailing his “scoops” to them for links. This is what the once-proud New Republic has evolved into — just another cog of the Vast RIGHT Wing Conspiracy.

TNR has, for at least the last quarter century that I’ve followed it, been a center-left publication rather than a hard left magazine such as or Mother Jones. It’s most prominent editors during that period have included Michael Kinsley, long one of the most respected left-of-center opinion journalists by conservatives, and Andrew Sullivan, a generally right-of-center pundit highly regarded (until the Iraq War, at least) by those on the left. It’s not surprising that they would disagree with DailyKos’ tone; that doesn’t make them a Right Wing publication. Not hardly.

Moreover, this is a sleight-of-hand. The arguments made by Zengerle and company about the alleged payola between Armstrong and Kos are factual and ethical, not partisan. Surely, TNR would attack a similar story involving Pajamas Media or Michelle Malkin with glee.

But I do admit being surprised by the sheer creativity of their invented attacks, such as my supposed “pay for play” scheme. Let me be crystal clear. I deny that charge completely. I have stated the sources of my income and they do not include money from people asking me to shill for anyone or anything. Problem for these writers, is that the law doesn’t protect such defamation. The truth is an absolute defense to libel cases. If they have evidence for those smears, then they have nothing to fear. But if they, say, recklessly invented all manners of illegal or unethical activities by me without bothering to see if they bore any basis in truth, then they’ll have plenty to worry about.

Like Sterling Newberry, Kos seems to have very little comprehension of libel law. This is quite odd; he’s an attorney. Yet, even a novice knows that “truth is an absolute defense” applies to the accuser, not the accused. Thus, if Zengerle can prove that Kos is getting payola from Jerome Armstrong, he wins a libel suit notwithstanding any harm suffered by Kos pursuant to those charges.

However, the reverse is not true; Zengerle’s inability to prove payola or Kos’ convincing a jury that he is innocent of the charges would not necessarily result in a damage award. Kos has an affirmative burden to demonstrate that Zengerle either knew the charges were false or that he acted with reckless disregard for the truth. Indeed, given that Kos almost certainly qualifies as a public figure at this point, he might well be held to a much higher standard: proving that Zengerle had malicious intent.

Furthermore, nothing Zengerle wrote is untrue. There were SEC charges against Armstrong. There was a settlement between Armstrong and the FEC. Kos and Armstrong did work for the Dean campaign for a time while writing pro-Dean things on their blogs and not disclosing such. Kos has in fact written laudatory things about Armstrong’s clients, even reversing himself to do so, even though several of them seem unlikely candidates for Kos-love. Zengerle has not written that Armstrong has given Kos money to write these things or that Kos took money. He’s merely saying the facts laid out are suspicious.

Until proven otherwise, Kos deserves to be taken at his word that there is an innocent explanation for his behavior. His political style is take-no-prisoners and very much ends justify the means. That doesn’t mean that his personal ethics are governed by that mindset. But petulant posts and hollow threats of libel charges, combined with trying to orchestrate a campaign of silence on the part of the prominent lefty blogs, isn’t helping his case any.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Ugh says:

    I don’t think Kos got the libel law point wrong, though the paragraph could certainly be written better. He clearly states that if they have evidence for the “smears,” i.e., they’re true, then they have a defense. He then says if they “recklessly” made it all up, then they might be in trouble.

    In any event, filing a libel lawsuit would be silly and petty, and, as you say, hard to win given his public figure status.

  2. James Joyner says:

    Ugh: But the “evidence” for the “smears” is clearly outlined in the articles themselves. They lay out a chain of events, with documentation for same hyperlinked. There’s no actual charge of money changing hands that I recall, although readers can clearly reach that conclusion.

  3. Ugh says:

    I don’t disagree with you on that, Kos is having trouble applying the law to the facts in the articles that have been written, I just didn’t think he was getting the law wrong. That is, he knows what the elements of libel are, he just doesn’t realize, or is too close to the issue that he can’t think clearly about it, that he likely has no case.

  4. Dave Schuler says:

    “My center is giving way, my right is in retreat; situation excellent. I shall attack.”

  5. Michael says:

    I think Kos’s implication is that Zengerle has no proof that the stated facts correlate directly to the main accusation (kosola).

    Is it unethical to change your publicly stated position on a person or issue for personal profit? Yes, absolutely. However, Zengerle doesn’t accuse Markos of this, he accuses Markos of changing position because of Armstrong. He implies that Markos did this for Armstrong’s personal profit, and he has no proof for that.

    I’m sure that James often has discussions with friends and peers about issues where they bring up new points that can change his opinion on a person or issue. These people may even profit from the person or issue being discussed. Does that make it unethical?

    Is keeping your original position constant despite new ideas the only ethical course? I don’t think so. Perhaps James should have Markos reference the posts where he changed his opinion, and explain the reasons for the change. I would like to see that response posted here.

  6. What I find most amusing about this is the action taken to “starve the issue of political oxygen”, aka the email to the liberal bloggers asking them to not talk about the issue, is what is giving the issue the most fuel to burn.

    I think Althouse said it best.
    Kos: Let me be crystal clear. I deny that charge completely.

    Nixon: Let me make one thing perfectly clear. I am not a crook.

  7. Barry says:

    Let’s see about TNR – Sullivan championed ‘The Bell Curve’, and boasted about his courage in doing so. Fred Barnes was a reliable right-winger there, before he went to the Weekly Standard. Kaus was as he is, an unreadable right-wing hack who pretends to be liberal, to give his fantasies cred.

    The New Republic, IIRC, pursued the Clintons (both Bill and Hillary) enthusiastically during the 1990’s. Not as enthusiastically as the hard-right media, but that would be hard, for those who didn’t actually have rabies. TNR loves Lieberman, otherwise known as the only Democrat who Republicans like. TNR trashed Gore at least once that I can recall in the 2000 election (the vampiric Gore cover).

    Martin Peretz, the owner who *is* certifiable, would be a Likudnik, except for the fact that the Likud party hasn’t yet called for the liquidation (excuse me, ‘expulsion’) of all Arabs from any land that Israel possesses, will possess or might want to possess.