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Justin Baldoni's libel lawsuit against The New York Times may be tough to win but could help him in the court of public opinion, media lawyers told Business Insider.
Baldoni was part of a group that sued the Times this week over its bombshell story on Blake Lively's sexual-harassment claims against him. Baldoni and Lively starred in "It Ends With Us," a film that debuted in August.
The libel suit accused the Times of relying "almost entirely" on what it described as "Lively's unverified and self-serving narrative" and said the newspaper disregarded "an abundance of evidence that contradicted her claims and exposed her true motives" in its December 21 story.
The bar for someone considered a public figure, like Baldoni, to prove libel is high. Public figures have to show that a news outlet not only published false information but also knew it was false or had a reckless disregard for the truth, a standard called "actual malice."
"The suit against the paper is going to be an uphill battle," said Desirée Moore, a partner at Venable LLP who specializes in similar disputes.
The Times said in a statement that its story was "meticulously and responsibly reported" and that it planned to vigorously defend against the suit.
Many jurisdictions offer broad protections for news outlets to publish accusations that are deemed newsworthy and also part of official proceedings — even if they know those accusations are false.
The Times article was largely based on a California Civil Rights Department complaint (CRD) that Lively filed, which would be considered official proceedings. It included excerpts from text messages and emails that the CRD said she obtained through a subpoena. Several media lawyers told BI that this could help insulate the Times.
The "fair report privilege" in New York, where the libel suit was filed, protects the news media from defamation lawsuits when they publish accurate and fair reports of official proceedings.
"The public policy behind this privilege is that keeping citizens informed about matters of public concern is more important than protecting individual reputations," said Sean Andrade, a Los Angeles lawyer who's represented plaintiffs in libel cases.
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Baldoni's libel suit claimed that the Times falsely accused him of a campaign to smear Lively by cherry-picking the messages it reported. The suit said the Times knew its portrayal of him and the other plaintiffs was "false, incomplete, misleading, and highly inflammatory."
The libel suit claimed, for example, that the Times' reporting on a text exchange between Baldoni's publicists Melissa Nathan and Jennifer Abel omitted the use of an upside-down smiley face emoji that indicated sarcasm. The Times said in a statement to BI that its reporters didn't see the emoji in question in the version of the docs they reviewed.
If the Times took certain texts out of context, that would be "a little unethical," Andrade said. But, in his view, that alone wouldn't negate that Baldoni's reps engaged in an alleged smear campaign.
Baldoni's libel suit also claimed that the Times made a false promise by publishing its article about two hours before the deadline it gave him and others to comment.
The Times said in a statement to BI that the outlet shared the information it planned to publish with Baldoni, his production company Wayfarer Studios, and other subjects of the article, and that they chose not to talk to the Times or address any specifics. Instead, the Times said, the subjects emailed a joint statement, which the Times printed in full.
Andrade felt that while it might be fair to point out that the Times didn't provide enough time to respond, as the libel suit claimed, that doesn't necessarily make the story libelous.
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Media lawyers said that whether or not Baldoni prevails in court, filing a libel suit could give him other advantages.
The plaintiffs might learn something about the paper's defense in the discovery process that could help them in other potential legal fights. Baldoni's lawyer, Bryan Freedman, told NBC News that his client planned to sue Lively. Given both cases would share some underlying facts, discovery in the Times case could help in a potential case against Lively, Moore said.
The plaintiffs in the Times suit could also prevail over any future motion to dismiss, or win a small financial settlement that could let them claim victory and keep the story in the public's eye.
"There is value for him potentially in simply getting his story out and presenting a counter-narrative," Moore said. "Any time we're working with high-profile clients, we look at the long-term narrative. To the extent you can control some of it, you want people to look back and say, there was more than one narrative."
It's hard to say if the case will impact other media outlets. Armed with strong First Amendment protections, news outlets are loath to pay big settlements in libel cases lest they appear to be conceding wrongdoing, Moore said.
ABC News and Fox News have recently paid settlements in high-profile defamation cases, however. Damon Dunn, a First Amendment attorney at Clark Hill, said courts have been allowing more cases to go to juries as media companies have lost prestige in some corners.
"The Dominion settlement rattled a lot of news desks," he said of the Fox case. He didn't expect the mere filing of a case against the Times to have a ripple effect on other newsrooms, though.
