Ed Whelan may have just crossed a line he can’t jump back over.

Yesterday, Whelan, president of the Ethics and Public Policy Center, a conservative think tank and an assertive supporter of Brett Kavanaugh’s nomination to the Supreme Court, took to Twitter to lay out a Hardy Boys-inspired scenario, suggesting that Christine Blasey Ford, the woman who accused Kavanaugh of attempted rape in high school, might have been mistaken about the identity of her alleged sexual assaulter. Using a mashup of yearbook photos, Zillow information, Google Maps and Facebook, Whelan laid out a “case” that another man, a former classmate of Kavanaugh’s at Georgetown Prep—whom he named and provided a current photograph of—might have been the person Ford has in mind. After his wild theory received widespread criticism, Whelan deleted the tweets and tried to walk back the accusation this morning.


But, if it’s false, it’s already too late to protect him against a possible defamation claim.

The common law of defamation isn’t that complicated. To be liable, the defendant must make an intentionally or negligently false statement about the plaintiff that tends to cause reputational harm, and harm must actually ensue.

The requirement that the statements Whelan made about the “mystery man” (whom we’ll not reidentify here) be false might be the most difficult requirement to satisfy. The first question courts ask is whether a reasonable person would think the defendant was saying something that would be taken as the truth—because a statement can only be “false” if compared to a true one. Generally, opinions are not actionable, if the defendant sets forth the basis for them and doesn’t claim them to be true. Whelan might argue that he himself was publishing an opinion, as one of the last tweets in the storm has this disclaimer: “I have no idea what, if anything, did or did not happen in that bedroom at the top of the stairs.”

But that may not be enough to insulate Whelan, given that he also wrote of “compelling reasons to believe” Kavanaugh’s denial, and then launched into a tweetstorm examination of what he clearly presents as evidence in support of his “theory.” A reasonable person might well think he was making a claim about what “really” happened. The case he builds reads much more like a series of factual, evidence-based claims than an opinion. The mystery man, though, will have the burden of proving that the statement Whelan made was false, and would be reasonably taken that way.


In addition to showing the statement was false, the Kavanaugh look-alike will have to show that Whelan was at fault in making it. In a series of decisions dating back to 1964, the Supreme Court has held that freedom of speech under the First Amendment requires public figures making a defamation claim to show the defendant was guilty of more than “mere” negligence—they have to convince the jury that the defendant either published the statement knowing it to be untrue, or showed reckless disregard for whether the statement was true or false. Otherwise, the Supreme Court reasoned, defendants might fear liability for a less serious error and would be tempted to refrain from publishing controversial statements about public figures at all. In that case, the public’s right to know would be compromised.

But the alleged assailant Whelan named isn’t a public figure, and the court has declined several chances to expand the recklessness requirement to private citizens who don’t do anything to place themselves in the public eye. In cases involving matters of public interest but private plaintiffs, such as the Whelan Twitter thread, only a showing of negligence is required. For the “mystery man” to prove Whelan was negligent, he must show that a reasonable person would have investigated further before setting out his theory on Twitter. That seems clear in this case, and is underscored by Whelan’s deletion of the entire thread.

Of course, nothing stops the Supreme Court from changing its own rules; no interpretation of the Constitution is really ever “settled.” And because the Supreme Court has no rules in place to determine when a justice must recuse himself from sitting on a case, there’s a chance that Kavanaugh could provide a crucial fifth vote in a precedent-setting decision making it harder for the Kavanaugh look-alike to win a defamation claim. Perhaps the court will apply the “recklessness” standard to all cases involving matters of public interest; several justices have argued for that position over the years.

Whelan can’t jump back across the defamation line through his retraction, either. While his mea culpa and tweet deletions will make it harder for people to find the assailant’s identity, it’s not that hard. (It took me exactly four seconds.) In any case, the law is clear that the defamation is actionable once “published”—meaning, made known to at least one other party. Here, of course, the whole Twitter-verse watched, agape, as Whelan pumped out his “what if” account.


Whelan’s retraction could still be relevant, though, in another way. The law presumes that, at least in cases of libel (written defamation, which includes Twitter), the plaintiff has suffered harm, so recovery of damages is possible even if no calculable damages—such as the loss of one’s job—are proved. But since the jurors have a good deal of discretion in fixing the amount of the award, they are quite likely to award less compensation in cases, like this one, where there’s been a retraction and an apology.

Some have mentioned another possible claim. A number of states recognize a claim with less stringent requirements than defamation against anyone who places the plaintiff in a “false light” that would be “highly offensive to a reasonable person.” The claim is subject to strict Supreme Court rules that balance the plaintiff’s interest in not being placed in a “light” that would be offensive with the public’s right to know, but it has a further, more serious limitation: The tort isn’t even recognized in many states, including Virginia, whence the tweets might have emanated. Even if the action is brought under the law of a state that does recognize it, in the case of Whelan’s statements, the conduct, if believed true, would certainly be defamatory—so the false light tort doesn’t have any real purpose, even if its requirements could technically be met.

Is this all beside the point, though? Will Kavanaugh’s supposed evil twin even sue? He signed a letter attesting to his former classmate’s good character in a letter to the Senate Judiciary Committee this past summer. Of course, he might not care about that as much as what he might reasonably perceive as an assassination of his own character—and by the time he might decide to sue, the whole Kavanaugh nomination circus will have left town (one way or the other).

If Kavanaugh’s former schoolmate does decide to try to hold Whelan to account, the effect could be much greater than simply wringing damages out of him. There’s talk (including from former Republican strategist Steve Schmidt) suggesting that Whelan didn’t act alone, but was supported by actors within the U.S. government. A civil lawsuit could get to the bottom of that claim. While a finding of involvement by other actors wouldn’t absolve Whelan of liability, it might lead to other civil suits, or, perhaps more important in our current political moment, embarrassing revelations that could have electoral implications. As I’ve written in the context of the Stormy Daniels litigation, tort claims can often serve the broader purpose of turning up information about wrongdoing—not only by the defendant, but by others who are not even parties to the lawsuit. The discovery process, by which both sides are routinely required to turn over a blizzard of documents, emails and other materials related to the central claim, can make life miserable for those trying to conceal their wrongful conduct. Just ask the people who ran the tobacco industry in the 1990s.

For now, Whelan’s voice has gone silent. Whether that will continue for long is impossible to predict, but we can safely say that the Kavanaugh nomination debacle will continue to provide the worst kind of train-wreck fascination.

