Yes, a scandal rag can be sued out of existence

The National Enquirer occasionally and remarkably unearths truths that reverberate through politics and journalism. It wasn’t wrong, for instance, about presidential candidate John Edwards and his affair, or about presidential candidate Gary Hart and his affair, or about O.J. and his … Bruno Magli shoes. It’s not wrong about Washington Post owner Jeff Bezos’ affair, either. But Bezos’ evidence that the Enquirer sought to blackmail him with threats of publishing intimate texts and photos, along with revelations of its practice to “catch and kill” negative stories about favored public figures, reminds us that at its heart, this publication is journalistic and ethical garbage. And maybe a criminal enterprise. If you think, though, that the Enquirer is the most outrageous scandal magazine ever, you’d be wrong. Although it didn’t intersect with national politics as the Enquirer manages to do, the now-defunct Confidential magazine of the late 1950s was equally controversial. As documented by Samantha Barbas of the University at Buffalo School of Law in 2016, Confidential was the most popular and most despised magazine of its era. Using hidden tape recorders, private investigators and prostitutes as informants, the magazine “destroyed celebrities’ reputations, relationships and careers.” And like the Enquirer, it sometimes withheld negative information to use as future leverage over celebrities and agents. Although most of the magazine’s headlines were true, celebrities sued, and the State of California, operating at a time when laws and attitudes were not as protective of a free press as today, charged Confidential with criminal libel and publication of obscenity. The criminal case ended favorably for the magazine with a split jury, but that obscures the real impact. Confidential abandoned its stock in trade in 1958 because of the decimating costs of fighting all that litigation. Which brings us to now. Bezos has a strong invasion of privacy case against the Enquirer, should he wish to pursue it. He could fund lawsuits by others, too. Journalists understandably recoil at the notion of wealthy plaintiffs sidetracking the press’ mission with harassing and expensive court actions. Bezos himself was critical of PayPal founder Peter Thiel when Thiel secretly bankrolled the Hulk Hogan lawsuit that folded Gawker. But this view suggests that the price of a free press must include all thresholds of tabloid excess. And now it’s Bezos himself in the crosshairs, and he’s really angry. It may turn out that federal prosecutors will inflict sufficient damage on the Enquirer. But if Bezos wishes to take it further, the Enquirer may end up wondering regretfully why it decided to take on the richest man in the world.