Deceit is a variety of lying, in which literally accurate statements are intentionally used to mislead because their context encourages listeners or readers to interpret them incorrectly. “I did not have sexual relations with that woman!” (“At least what I consider sexual relations ”) is the most famous recent example, but deceit is really the unofficial language of Washington D.C.
It is not supposed to be the language of the law, however (in fact, “deceit” is specifically taboo for lawyers according to their professional ethics rules), or the news media, which is supposed to convey the truth and not misconceptions. Nonetheless, the lawyers for Barry Bonds have seemingly concocted a very clever way to deceive the public regarding their client’s likely steroid regimen by making use of the press’ carelessness and legal ignorance.
Most of the headlines on the internet and in newspapers read like this one, from the Washington Post:
Bonds Plans Lawsuit Over New Book
Everyone reading that headline and those like it naturally will jump to the conclusion that Bonds is suing the authors of “Game of Shadows” for libel, that he will be alleging that the detailed accounts in the book of his steroid use are false. After all, when excerpts for the book were published in Sports Illustrated, many observers said, “Well, let’s see if Bonds sues for libel. If he doesn’t, we’ll know that they’ve got him dead to rights and that the book is true.” And they were right. The book will be devastating to Bonds if he does not effectively rebut it. Even if it doesn’t lead to perjury charges or suspension, it permanently tarnishes his reputation. It could cost him his place in baseball history, and millions of dollars in endorsements. If false, the book is precisely the kind of publication libel law is designed to address; the only rational reason Bonds wouldn’t sue for libel is if the book is factual. On the other hand, it would be foolhardy to sue for libel if the book isn’t false, because the court case itself would expose Bonds more surely and unequivocally than the book ever could. This mistake, some of you may recall, is what destroyed the British writer Oscar Wilde
So the news that Bonds is suing gives Bonds defenders hope. In the absence of any investigation by Major League Baseball, which appears to be hoping that Bonds will be hit by lightening or transported to another dimension before his pharmaceutical cheating allows him to break baseball’s all-time homerun record this saeson, the lawsuit buys Bonds time and gives him cover, which is exactly what it is supposed to do.
But Bonds isn’t suing for libel. Buried deep in the Post article is this:
Bonds’s legal team will ask a judge today to issue a temporary restraining order forfeiting all profits from publication and distribution, according to the letter. The lawyers plan to file the suit under California’s unfair competition law.
The Chronicle reported that the attorneys will ask a federal judge to initiate contempt proceedings “for the use of illegally obtained” grand jury transcripts the authors used in writing the book. The paper also reported that Rains said profits should be forfeited because of that.
His lawsuit isn’t claiming that the book is untrue, it is claiming that some of the material used as sources for the book was illegally obtained, as indeed they might be. How does this lawsuit help Bonds? Not at all in the long run, unless succeeding in seeing that the reporters that finally exposed him don’t profit from it satisfies his thirst for revenge. But there is one way the law suit helps him in the short term, and that is if most casual sports fans and legally illiterate sports columnists think that he is challenging the book’s content. That is probably part of Bonds’ strategy, desperate though it is. “We can’t just sit and do nothing about the book; it makes me look guilty,” Barry may well have said. “Can’t we sue them?” “Well, we can’t claim you never used steroids, now can we?” his lawyers responded. “Just sue about something. Just the news that we’re suing undermines the book’s credibility. Nobody’s going to dissect what we’re suing about right away,” Barry points out. “Hmmmm,” say his lawyers. “There is one thing we could do ” And they did it. The lawsuit is factual and straightforward, and yet it will be misinterpreted by most of the public, who read the headline and nothing more.
The media, true to form, is doing its part to confuse the public by making it unclear what the suit is really about. A notable exception: The San Francisco Chronicle, which headlined the story properly:
for Bonds plan to sue over steroids book
The Chronicle has a strong motivation to get it right, however; the authors of “Game of Shadows,” Mark Fainaru-Wada and Lance Williams, are Chronicle reporters. But the link to the Chronicle piece on The Drudge Report reads, “Barry Bonds to Sue Over Steroid Expose.” When I read it, and when everyone else read it, the thought it inspired was “Hey! Maybe Bonds isn’t guilty after all!”
Which is exactly what Bonds and his lawyers want us to think for as long as possible.