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Lena Dunham, Liar?

Well, well, well, Random House has admitted that the rape, or quasi-rape, that memoirist Lena Dunham said a campus conservative named Barry committed against her was not, in fact, committed by someone named Barry [1] — this, after an actual conservative named Barry who attended college with Dunham protested against the smearing of his reputation. Eugene Volokh says:

Appalling. The book wasn’t a novel; it was a memoir, offered to readers as such. The copyright page, which I suspect few people read, does say that “Some names and identifying details have been changed,” but it certainly doesn’t tell people which ones.

Indeed, early in the book, when she mentions a boyfriend of hers and labels him Jonah, she adds a footnote: “Name changed to protect the truly innocent.” Reasonable readers, it seems to me, reading the rest of the memoir, would assume that “Barry” — whose name wasn’t accompanied with any such footnote — was actually named Barry. Even if not all readers would so conclude, many would, and quite understandably so.

How could Dunham and Random House do this? How could an author and a publisher — again, of a self-described memoir, not a work of fiction — describe a supposed rape by a person, give a (relatively rare) first name and enough identifying details that readers could easily track the person down, and not even mention that “Barry” wasn’t this person’s real name?

The Hollywood Reporter quotes Barry’s lawyer [2]saying:

“We’re not on a warpath,” Minc said. “We’ve been trying to get their attention for months. It took the threat of litigation to make them take action. We have certainly intimated that we think our client is being libeled, but we’ve been trying to be as reasonable as possible. The remedy to solve this issue is not necessarily legal in nature, and we recognize that. A lot of the suffering Barry was going through and was about to go through could be cured by simple, remedial action from Miss Dunham and Random House.”

Sue the bastards. That’s the only way they will learn. Make the publisher withdraw the whole damn book, for which they paid a $3.7 million advance (which they will probably be able to recoup from Dunham; book contracts typically contain language saying that the author guarantees the material to be truthful, if presented as truthful). I bet this Barry will win, too. To prove libel [3], you have to show that the published material was identifiably about you, that it was untrue, that it harmed your reputation, and that it was published negligently (that is, with a reckless disregard for the truth). In another post, Volokh says that “Identifiable Conservative Barry” has a strong case [4].

Lawyer up, Lena. This is going to get interesting. Kudos to John Nolte at Breitbart News for his detective work [5]in deconstructing and disproving Dunham’s disgusting allegation. If he hadn’t done that, where would Barry be?

Are we really in a moment when the publishing industry feels that it can smear people as sexual predators long as the smearees are white males who might be fairly accuse of Republican sympathies? Did it even occur to Random House’s editors to wonder if Dunham was telling the truth here, or did they assume that she must be, because everybody knows Republican men are rapists? Just like everybody knows that Southern frat boys gang-rape women at parties, as Rolling Stone told us, sounds like.

136 Comments (Open | Close)

136 Comments To "Lena Dunham, Liar?"

#1 Comment By RB On December 10, 2014 @ 3:41 pm

Church Lady, I totally agree with your assessment of Lena Dunham’s trivializing of rape.

And ratnerstar…your 10:14 am post made my day. Thank you.

#2 Comment By Anne On December 10, 2014 @ 3:43 pm

Final thoughts on the name Barry:

It was more common in the early 80s than today.

A conservative Barry born in the 60s or shortly thereafter may have been named after Barry Goldwater, or been nicknamed in Goldwater’s honor.

Barry is often a shortened version of another name, such as Baruch, Barrymore, Barack and other ethnic equivalents. So Barry would not be the official name on the birth certificate.

#3 Comment By Reinhold On December 10, 2014 @ 3:59 pm

“Oh, Reinhold, you forgot “fat” and “unattractive.”
It seems every forum criticizing Dunham can’t help but add those two adjectives. As though if she were conventionally pretty, we would forgive her behavioral flaws. [I know, you weren’t necessarily saying those things about her.]”
I actually think the term “irrational animus” applies perfectly here (though not in the legal case of gay rights). The right-wing ‘criticisms’ of her rely entirely on a picture of someone so dishonest, ill-intentioned, and sinister––grooming her infant sister for sexual predation, lying about being raped and then lying about lying about it––that it can’t possibly be grounded in any rational critique of an actual person who writes a TV show. Moreover, those are usually amended with the requisite claims that she is also fat, ugly, slutty, stupid, narcissistic, etc. And then if anyone dares to question the details of the accusations against her, they are ‘defending a child molester and false rape accuser,’ not simply defending her from CHARGES of child molestation or false witness which we think aren’t borne out by the facts at hand. Either Lena Dunham is one of the most disgraceful and disgusting public figures in existence, or there is a certain Breitbartian right-wing contingent which hates her all out of proportion to reality. So who’s slandering and lying?

#4 Comment By tbraton On December 10, 2014 @ 5:19 pm

“This simply isn’t true. Dunham gives several descriptive clues about the real “Barry”, such as that he had a very low voice like Barry White, that he wore purple cowboy boots, that he sported a distinctive mustache, that he hosted a radio show at the campus radio station, that he graduated in December of 2005, that he worked at the main campus library. The actual Barry who’s complaining about her use of that name fits none of these descriptors. The only thing he has in common with Dunham’s pseudonymous “Barry” is that both are campus conservatives.

So, really, the description of this fellow in the book actually disqualifies the real Barry as a suspect. Should Dunham have checked to see how many Barry’s were on campus at the time? Maybe, but I don’t see how she could. Colleges tend to be pretty tight on student information, and I doubt they’d have allowed her to do any sort of search of their database. My guess is that she just chose the name for Barry White, because of the low voice, and left it at that.”

Church Lady, you engage in endless speculation and somehow regard it as fact. You don’t even bring up the simplest solution to the “Barry” problem: Ms. Dunham could have made it crystal clear that “Barry” was not the real name of the alleged “rapist,” just as she did in the other individual where she made it clear that she was using a pseudonym. But she didn’t, and for her to now argue that she didn’t intend to target the only “Barry” known to have attended in Oberlin during the years in question strikes me as coming a little too late. But I do know that libel laws vary from state to state, and I am totally unfamiliar with the libel laws of Ohio, which is probably the relevant state, unless “Barry 1” lives elsewhere. It appears that some states allow mitigation of damages where retractions have been made. I really don’t know whether that applies here and whether that explains the latest moves by Randon House and Ms. Dunham.

But I am bothered by your view which seems to be that an easy way to avoid a libel lawsuit is to add enough false statements about the person being libeled to create the false impression that the intended target was not really targeted. I believe the state of the law is that if the target can be sufficiently identified he can sue for libel. It seems to me by identifying her “rapist” as “Barry” when there was only one Barry attending Oberlin would meet the test no matter how many subsidiary facts she got wrong. Alleging rape against anyone is pretty serious business, and I am surprised that you appear to be treating it as no big deal. I agree the facts don’t seem to amount to “rape,” but the choice of the word “rape” was Ms. Dunham’s just as the choice of “Barry” was hers.

#5 Comment By Church Lady On December 10, 2014 @ 6:11 pm

tbraton,

I’ve admitted to not being a lawyer, but as I mentioned in my first post, my general understanding of libel law is that you have to prove malice. It’s true that Dunham should have said up front that “Barry” was a pseudonym, but that doesn’t mean she’s suddenly liable to lawsuits from anyone named Barry who was a student during the time Dunham was at Oberlin.

But you are right that if any reasonable person reading Dunham’s account of “Barry” could identify that person as the actual Barry1 complaining here, that would probably go a long way in any lawsuit. But since the description Dunham gives doesn’t match the actual Barry1, I don’t think it really goes anywhere. All he has going for his lawsuit is a first name that’s actually a pseudonymn and a political orientation. Everyone else doesn’t match up. So it’s pretty clear that Barry1 isn’t the guy in the book.

I suppose he could try to make a case for negligent libel, if there’s even such a thing. But malice doesn’t seem to be in the mix. There’s no evidence that Dunham even knew Barry1, and even Barry1 doesn’t claim she did, so where’s the malice? Without malice, as far as I know, there’s no libel.

So it doesn’t matter how common Barry’s name was. It doesn’t matter that there’s someone on campus actually named Barry (and you have no idea if there were other Barry’s on campus at that time anyway). It’s apparently either a random name just made up, or a placemark for “Barry White” because of the similar voice. Given that the identifiers cited in the book don’t match up, and there’s no malice in evidence, merely some unexpected negligence, I really don’t see a case. But like I say, I’m not a lawyer, and the job of a lawyer often seems to be making mountains out of molehills. And so does political griping on all sides, including Dunham, who makes a mountain out of her own molehill.

#6 Comment By Church Lady On December 10, 2014 @ 6:15 pm

btw, libel is incredibly hard to prove in the United States, given our free speech laws, and the burden of proof being on the plaintiff to show malice as the clear motive. Different story in England. Don’t know if the book has been published in England, but if so, that’s a much better venue for a libel suit than the US, if jurisdiction can be granted.

#7 Comment By Church Lady On December 10, 2014 @ 7:19 pm

The really funny thing about this whole controversy is that both elite liberals like Dunham and elite conservatives like tbraton and Breibart are stuck on the whole victimization thing. Dunham clings to the notion that she was victimized by “Barry”, and these guys cling to the notion that Barry1 was victimized by Dunhamn. Both are two sides of the same coin of stupid, and both miss out on the real story here, which is the lengths people will go to claim victim status, even when it’s on the thinnest of threads.

#8 Comment By ratnerstar On December 10, 2014 @ 7:45 pm

And ratnerstar…your 10:14 am post made my day. Thank you.

Haha, thanks! But in the interest of full disclosure, I didn’t completely make it up: I was riffing on a joke that’s been [6].

#9 Comment By tbraton On December 10, 2014 @ 8:34 pm

As my final word on this thread, I will quote several relevant passages from a piece I just discovered which appeared yesterday in the Washington Post by Prof. Volokh, which better expresses some of the thoughts I have been posting:

“. . .what’s the point of checking into whether particular factual allegations are accurate? Details, details.

But it seems to me that a basic tenet of journalism is that details matter. First, they matter to people’s reputations. Maybe the fact that Dunham’s alleged rapist wasn’t named “Barry” is irrelevant to those who care about “sexual assault on college campuses.” But they matter to a particular man named Barry, whose reputation was jeopardized by Dunham’s labeling the alleged rapist Barry without stating that this was just a pseudonym. Likewise, while there’s no legal cause of action for libeling a political group, if it turns out that Dunham’s alleged rapist also wasn’t a campus conservative — the Breitbart story casts some doubt on that detail, though it doesn’t conclusively disprove it — then this little detail isn’t really fair, either.

Second, the inaccuracy of some details that a person gives does cast doubt on the accuracy of other details. Of course, even honest people make mistakes. Of course, it’s eminently possible that all the other details Dunham gives are accurate, and the only thing that was fictionalized was the name. Of course, more generally, that a person who says she has been raped makes a slight mistake as to one detail doesn’t [mean] that she’s lying about other details that relate to the alleged rapist’s identity or actions.

Yet ultimately, when we — as journalists, as readers, as jurors — judge the credibility of sources, often the only way we can tell what happened “behind closed doors” is precisely by looking at how accurate and candid the witness has been as to other matters. An error or an unacknowledged falsification doesn’t categorically, automatically invalidate everything else a person is saying. But it does shed some light on the degree of trust we should place in that person.”
[7]

#10 Comment By Jim On December 11, 2014 @ 1:13 am

“btw, libel is incredibly hard to prove in the United States, given our free speech laws, and the burden of proof being on the plaintiff to show malice as the clear motive.”

It’s been a while since I’ve looked at libel, but I think that the “malice” requirement is only an element if the plaintiff is a public figure.

So unless Barry Manilow, Barry Bonds, Barry Sanders, or Barry Gibb was a prominent campus Republican at Oberlin while Ms. Dunham matriculated there, I doubt it is necessary for Barry 1 to prove malice.

#11 Comment By Lynn Gazis-Sax On December 11, 2014 @ 1:51 am

“I’ve admitted to not being a lawyer, but as I mentioned in my first post, my general understanding of libel law is that you have to prove malice.”

I’m not a lawyer, either, but I’d be wary acting on that general understanding without consulting an actual lawyer. It’s my understanding that the rule about malice is only true if the person defamed is a public figure: [8]

So, if I say something false and defaming about Lena Dunham, but don’t exhibit actual malice (I didn’t know my statement was false, and didn’t speak in reckless disregard for whether it was true or false), I’m probably in the clear, but if she does the same to me, she may not be in the clear, since she’s a public figure and I’m a private one.

That said, it does sound to me as if Lena Dunham didn’t intentionally defame Barry. She had a notice in the front of her book that some names and identifying details had been changed; it’s common practice in memoirs not to use real names (and often even to create composite characters – remember Obama’s composite white girl friend?), the fact that she had other details that didn’t match him at all matches her explanation that “Barry” was meant to be a pseudonym all along.

And this matters to me because it’s a reminder that, if you’re writing about your life (whether in a memoir or, as I do, in a personal blog), it’s easy to make the mistake of thinking you’ve protected someone’s identity, but do it badly, so that either you do identify the person you meant to protect, or you accidentally identify someone else as that person. Imagining Dunham as a deliberate perpetrator of a hoax to defame a conservative student against whom she had a grudge would let me off the hook, because, really, I’m hardly likely to do that. But just not considering the possibility that a general disclaimer in front would be ignored, or that a footnote about a pseudonym in one place would lead people to think the absence of a footnote meant a real name? That’s something an ordinary person could easily do (that in some circumstances might legally be defamation, and in any case is something we’d do well to avoid). It’s something you have to think to avoid, rather than something you can just assume you’ve avoided because you aren’t a sociopath.

When I blogged recently about my own experience of sexual assault in college, in connection with posting about California’s new “yes means yes” law, I used a random Klingon name generator to supply a pseudonym for the man involved, since I neither wanted him to turn me up in a vanity Google search nor to pick a name for him that would imply any identification whatsoever.

#12 Comment By Church Lady On December 11, 2014 @ 4:35 am

Checking legal sources, it seems that people above are right that libel requires proof of malice only for public figures. But a case like this would fall under the heading of “inadvertent libel”, which, even if proven (and there’s not a very strong case here for even that) limits damages to actual losses, such as loss of business income, and not some kind of generalized “loss of reputation” or personal suffering, embarrassment, etc. So Barry1 would likely only have a claim against Dunham if he somehow got fired from his job, or lost a client at whatever business he has, over this matter. Haven’t heard that being the case, and I think we would have heard that if it did happen.

Again, I’m not a lawyer, and could be misunderstanding this still.

As for Dunham, I still don’t see any reason to disbelieve her account, since the account itself pretty much acquits whoever “Barry” is from the charge of rape in the first place. If she was going to lie, wouldn’t she come up with a story a lot more like actual rape than this bad sex experience? So if she’s lying, she’s a very unimaginative liar. On the other hand, she says at the beginning of the book that she’s an unreliable narrator, an admission I suppose that we all tell the story of our lives to suit ourselves. So maybe not all the details are actually correct. Memory is not reliable in any case. Especially bad memories. We tend to embellish our own stories even to ourselves. So I don’t think we need to put a lot of stock into this story one way or another. Probably true in the same way that everyone’s memories of college have some truth to them, but if they were put to the test, we’d likely uncover contradictions. I’m sure Dunham is no different. She’d be much more liable if she’d ever made an actual complaint to any authorities about this, but she didn’t, and has no desire to. Not everything in life has to be decided by the courts or police.

#13 Comment By tbraton On December 11, 2014 @ 10:56 am

I realize that I am violating my earlier pledge to post no more on this thread, but Church Lady subsequently posted the following:

“tbraton,
I’ve admitted to not being a lawyer, but as I mentioned in my first post, my general understanding of libel law is that you have to prove malice. It’s true that Dunham should have said up front that “Barry” was a pseudonym, but that doesn’t mean she’s suddenly liable to lawsuits from anyone named Barry who was a student during the time Dunham was at Oberlin.”

Jim and Lynn Gazis-Sax have already pointed out Church Lady’s false legal advice, but here’s what she could have found by simply Googling “libel + malice”:

“Injured plaintiffs who are private citizens only have to prove the four elements listed above. An injured plaintiff who is a “public figure,” however, has to prove these four elements plus one more: that the defendant published the statement with “actual malice.” ”

“Actual malice is based on what the defendant was actually thinking at the time he published the defamatory statement. In this way, public-figure defamation cases differ from private-figure defamation cases. Private individuals only have to show negligence, or that a reasonable person would have researched the statement before publishing it. Public figures, however, must show not what a “reasonable person” would have done, but what this defendant actually did.

In order for the actual malice standard to apply, the plaintiff must be a “public figure.” Who counts as a “public figure” often depends on the facts in a particular case. “Public figures” usually fall into one of three categories: the public official, the all-purpose public figure, and the limited-purpose public figure.”

As I have pointed out earlier, the standard applicable to libel cases varies from state to state, and there is the further complication of who is considered a “public figure,” a matter which also varies from state to state. I don’t believe that “Barry 1” would qualify as a “public figure,” entitling Dunham to invoke the “malice” requirement.

So, Church Lady, you should chuck your totally unreliable “legal advice” in the same trash heap as your statistical analysis which “proves” there were at least four “Barries” at Oberlin during the relevant years in question, rather than the one asserted by John Nolte in his well-researched Breitbart piece (which no one has challenged btw). Of course, we “know” that one of those “Barries” was Barry White, even though he had been dead for a number of years and the legitimacy of his claim is much in doubt. You acknowledge that you are not a lawyer yet you insist on giving us legal advice. My recommendation to you is to at least try to educate yourself (Googling on the internet is a great resource) before lecturing us on a complicated subject matter about which you know little or nothing.

BTW, Church Lady, here is something to ponder in light of your statistical expertise. Dunham is well-known as a very liberal Democrat from NY City, and Oberlin is well known for its liberal political orientation. I think it is safe to say that there are as many conservative Republicans attending Oberlin as there are “Barries.” I find it strange that Dunham, in light of her political orientation, would seek out the rare conservative Republican for romance. Since you concede that Dunham, in effect, lied about the name “Barry,” aren’t the odds great that she also lied about “Barry’s” political orientation. So, if there was indeed a “rape,” the statistical odds are great that the “rape” was perpetrated by a liberal Democrat student at Oberlin. Food for thought.

#14 Comment By tbraton On December 11, 2014 @ 11:13 am

“When I blogged recently about my own experience of sexual assault in college, in connection with posting about California’s new “yes means yes” law, I used a random Klingon name generator to supply a pseudonym for the man involved, since I neither wanted him to turn me up in a vanity Google search nor to pick a name for him that would imply any identification whatsoever.”

Lynn Gazis-Sax, the great George Kennan wrote a famous piece that appeared in Foreign Affairs magazine in 1947(?) under the pseudonym “Mr. X.” It would stand you in good stead with the editors of TAC if you honored that tradition by using the same pseudonym (“Mr. X”) in the future. Why the need to come up with a more colorful name since you make it clear that you are using a pseudonym? In any case, I would definitely recommend not using “Barry” as the pseudonym since that poor fellow has more than enough problems on his plate right now (I am given to believe that “Barry” is such a rare name that there is only one in the entire U.S.—he also goes by “Barry 1”).

#15 Comment By A. G. Phillbin On December 11, 2014 @ 11:21 am

@tbraton,

Maybe the fact that Dunham’s alleged rapist wasn’t named “Barry” is irrelevant to those who care about “sexual assault on college campuses.” But they matter to a particular man named Barry, whose reputation was jeopardized by Dunham’s labeling the alleged rapist Barry without stating that this was just a pseudonym.

This is idiotic lawyering. The fact that Dunham’s alleged rapist (or “rapist,” per Church Lady) was not named Barry is not only irrelevant to “those who care about ‘sexual assault on college campuses,’” but even to those who don’t. The only relevance such an oversight can have is if it was done deliberately, in order to defame a particular person by that name. Since apparently NONE of the descriptors used by Dunham match the actual “Barry” (if that is his real name), that makes deliberate defamation unlikely.

By the way, why do you put the words sexual assault on college campuses in scare quotes? Are you one of these silly people who think that, because feminists exaggerate the danger of campus rape (they do), that turnabout is fair play, and this sort of stupid “scandal” is some kind of comeuppance? In other words, do you really care about the specifics, or is this some kind of “movement conservative” thing for you?

#16 Comment By tbraton On December 11, 2014 @ 12:52 pm

“@tbraton,

Maybe the fact that Dunham’s alleged rapist wasn’t named “Barry” is irrelevant to those who care about “sexual assault on college campuses.” But they matter to a particular man named Barry, whose reputation was jeopardized by Dunham’s labeling the alleged rapist Barry without stating that this was just a pseudonym.”

A.G. Philbin, I don’t know what to say since the quoted words are not mine.

“By the way, why do you put the words sexual assault on college campuses in scare quotes? Are you one of these silly people who think that, because feminists exaggerate the danger of campus rape (they do), that turnabout is fair play, and this sort of stupid “scandal” is some kind of comeuppance? In other words, do you really care about the specifics, or is this some kind of “movement conservative” thing for you?”

I believe your complaint should be directed to Prof. Volokh, whose words in the Washington Post I was quoting. I made it very clear that I was quoting Prof. Volokh, put his words in quotes, and even posted the link to his Washington Post piece. So I am totally puzzled why you are attributing his words to me. BTW I think by now enough doubts have been raised about Ms. Dunham’s memoir account of the alleged “rape” at Oberlin, not to mention the RS/UVA “rape” scandal, that any poster is justified in putting quotation marks around the allegations when discussing either of those cases. Even you concede that “feminists exaggerate the danger of campus rape (they do),” but you choose to dwell on insignificant matters like words in quotation marks and engage in baseless speculation about me being part of a “conservative movement.”

#17 Comment By Church Lady On December 12, 2014 @ 3:05 am

Since you concede that Dunham, in effect, lied about the name “Barry,” aren’t the odds great that she also lied about “Barry’s” political orientation. So, if there was indeed a “rape,” the statistical odds are great that the “rape” was perpetrated by a liberal Democrat student at Oberlin. Food for thought.

First, I already made many cavaets that I didn’t know the law, and actually asked other people with legal experience what they knew. Something you might try yourself on all sorts of issues, rather than just claiming to know what you’re talking about (which usually it seems you don’t). And as I posted above, I already found out after others pointed it out that malice isn’t required for libel cases, so that’s already withdrawn. And it was not my “legal advice” to anyone. It was part of the discussion of just how viable any legal claim by Barry1 would be. As I pointed out above, it sounds more like a case that could at best fit into a category called “negligent libel”, which has limited remedies for a lawsuit. But again, let actual lawyers chip in and offer their opinions.

It’s not established at all that Dunham lied about the name Barry. As her disclaimer at the beginning of the book shows, she says that many of the names and identities of people in the book have been changed. So that’s not lying, it’s a common technique in memoir writing. Now, maybe she should have given a specific disclaimer about “Barry” as well, and it might well be negligent of her not to have. Maybe the guy will be able to squeeze a few bucks out of her publisher, if he actually lost any business out of all this.

As to the claim that the guy who raped her was a conservative, I know a few people who went to Oberlin, and while there’s a strong liberal thing going on there, it’s not as overwhelming as you may think. Half the students are there for the music school, which is excellent, and that’s more a talent thing than a liberal arts issue, and it turns out that there’s plenty of talented conservative musicians. So it’s really not as unlikely as it might seem that there’d be a fair number of conservatives at Oberlin. It’s not your typical liberal arts liberal politics sort of school. It’s so heavy into the whole classical music scene that many conservatives still want to go there purely for the musical education it offers.

Btw, one of my friends who went there transferred out to Julliard after the first semester, because their roommate was totally and completely insane, and began claiming to be the reincarnation of Wagner (he was Jewish), and had to be hauled off to a hospital. So it’s not exactly the most balanced and sane place to begin with. Dunham must have fit in just fine.

So anyway, whether or not Dunham’s “Barry” really was a conservative, or even a prominent one, isn’t all that far-fetched. His deep voice suggest he may have been a baritone, or otherwise into the music scene there. And he seems not to be the only guy Dunham ever had bad sex with. I’m not even sure she’s ever had good sex. So it’s not really a slam on conservatives in any case. It’s just one guy she developed an exagerated animus for.

Anyway, why so identify with this guy that you need to take down the whole of Dunham’s story? She doesn’t need to be proven to have lied about it to show that it wasn’t rape in any case. Her own account does that all on its own. So there’s literally nothing for whomever “Barry” was to be ashamed of. Other than sleeping with Dunham, of course.

#18 Comment By tbraton On December 12, 2014 @ 1:24 pm

“First, I already made many cavaets that I didn’t know the law. . .And as I posted above, I already found out after others pointed it out that malice isn’t required for libel cases, so that’s already withdrawn. And it was not my “legal advice” to anyone. It was part of the discussion of just how viable any legal claim by Barry1 would be.”

Let’s go to the tape, Church Lady, as they say on ESPN. In your very first post on this thread (Church Lady says:December 10, 2014 at 1:18 am), the first sentence of the first paragraph does state that “I”m not a lawyer, but I have to wonder if there’s really a case here. Dunham only used a first name, Barry, that’s actually fairly common. (I’ve had a few friends by that name, and it’s my mother’s maiden name). . . .”

That’s a pretty dubious proposition about the commonality of the name “Barry” based on links posted by me and others, but, as I stressed in an earlier post, John Nolte’s investigation published in Breitbart revealed that there was only ONE Barry at Oberlin during the relevant years. (More on this point below.) But your second paragraph states in a rather authoritative manner, with no qualifications (sort of in the style of Ms. Dunham):

“At the very least, a libel lawsuit would require evidence of malice aforethought, and unless it can be shown that Dunham knew this other Barry, and had some grudge against him that made her use his name and various clearly identifying details to describe him, it doesn’t sound like there’s a case here.”

Now a subsequent poster, Lynn Gazis-Sax also stated that she wasn’t a lawyer but somehow got the law right in challenging your statement. (I hadn’t read your correction when I posted the comment due to the delay in moderation by RD, who does an extraordinary job reading and clearing the enormous volume of comments he receives, in addition to posting original blogs. I’m in awe at his productivity.) Her post followed a similar post by Jim, whom I suspect may be a lawyer.

What I found striking about your statement re malice in libel cases was the absolutely unambiguous clarity in which you stated the totally wrong proposition. And your defense (sort of similar to Ms. Dunham’s defense about the qualification on the copyright page) is your disclaimer that “I am not a lawyer.” You concede in your earlier post that you only bothered researching the issue after others (Jim and Lynn Gazis-Sax) challenged your statement:
“Checking legal sources, it seems that people above are right that libel requires proof of malice only for public figures.” That’s sort of putting the cart before the horse. A competent lawyer would not go into court and make statements about the law without first researching the law in question. But somehow, even though you are admittedly not a lawyer, you feel free to spout off whatever legal nonsense has accumulated in your brain. Amazing. You remind me of an acquaintance where I live who fancies himself a “legal expert” even though, like you, he never attended law school in his life. He asserted a few years ago with the same confidence as you that the state where we live had a “loser pays” rule when it came to litigation. I was startled to hear that since that would make our state unique in the U.S. where the “American rule” applies. After researching the issue, I showed him the results, but he didn’t appear convinced. I wrote him off as a total fool.

” Something you might try yourself on all sorts of issues, rather than just claiming to know what you’re talking about (which usually it seems you don’t).”

Well, Church Lady, I don’t know how to respond to that shotgun assault. Can you be a little more specific? It may come as a surprise to you, but I happen to have a legal background and practiced law for a number of years. In fact, I have two law degrees. In obtaining the second, a master’s degree, I wrote a paper for a course taught by one of the then leading practitioners in his area of the law which he found so well written that he exclaimed it to be the best he had read on that particular aspect of the law and should be printed in a law journal, which it subsequently was. I have been posting on TAC for more than four years now (mostly on Larison’s blog), and I believe I can safely say that anyone familiar with my posts realizes that I am very careful in what I say and go to great lengths to substantiate what I am saying, much more than your typical blogger. That was generally the reaction I got from clients, other attorneys, accountants to my work product when I was actively practicing law. So I am totally puzzled about which comments you find offensive, and, of course, you give us not one hint about those offensive comments you have in mind. No wonder you are such an ardent defender of Ms. Dunham.

BTW, in closing, I have to take you to task for your rather ignorant use of statistics. In an earlier post, you employed the various statistics provided by me and others to arrive at what you consider to be the average number of “Barrys” at colleges around the U.S., specifically Oberlin. I recall that you came up with a figure of 4, based on the number of students who attend Oberlin. That shows you are not only not a lawyer but lack even a rudimentary understanding of statistics. Your assertion that there had to be at least 4 Barrys at Oberlin in any given year would be like me contending that, since blacks comprise roughly 10% of the total U.S. population, that means that 10% of the population of any specific town or city must be 10%, a proposition I hope even you would regard as ridiculous. Averages tell you nothing about distribution. The average weight of 200 passengers on a plane may be 185 lbs. but that does not mean all passengers weigh 185 lbs. Some weigh more, and some weigh less. While a college in NYC may have 20 Barrys, Oberlin and other colleges may have none. The figures all go in to determine the average number of Barrys at colleges in the U.S., but the average tells you nothing at all about how many Barrys attended a specific college. And, for Heaven’s sake, what is the possible relevance of the fact that you’ve had “a few friends by that name, and it’s my mother’s maiden name”? You remind me of the famous liberal female critic Pauline Kael based in NYC who supposedly (there is much dispute) declared after Richard Nixon’s blowout victory over George McGovern in 1972, “I don’t know how Nixon won. No one I know voted for him.” As a commentator said, “The quote is used as Exhibit A in proving clueless liberal elitism.” In your case, I would stop after the word “clueless.”

#19 Comment By Alethea On December 12, 2014 @ 9:38 pm

According to Lena’s own account of the event, it was consensual sex, not rape. According to Lena’s own words in her book –she is the sexual predator. Lena Dunham, has openly admitted to initiating and perpetrating Child-on-Child Sexual Abuse for at least ten years, on her sister –seven years her junior. Child-on-Child sexual abuse is a form of child sexual abuse in which a prepubescent child is sexually abused by one or more other children or adolescent youths, and in which no adult is directly involved. The term has been defined as sexual activity between children that occurs “without consent, without equality, or as a result of coercion.” (Shaw,J (2000). “Child on child sexual abuse: Psychological perspectives”.
Child Abuse & Neglect 24 (12): 1591–1600……Random House ought to be sued by every person ever sexually abused as a child –sued for publishing material that is harmful to children, and for making child sexual molestation out to be a joke.

#20 Comment By Church Lady On December 13, 2014 @ 3:03 pm

tbraton,

That last post of yours is a pretty good example of what I referred to about your not knowing what you’re talking about. Rather than actually talking about the actual case here, you go on a lengthy rant trying to “prove” that somehow I’ve distorted the entire case because of I missed the fact that libel for ordinary citizens doesn’t require proof of malice. Sure, it’s something I could have researched, but it’s also something I admitted I wasn’t sure of right off the bat, and asked others here with more legal experience to clarify. Others did just that, and you were one of them. Well, thank you for answering my request. But the way you’ve done that, to accuse me of presenting my views re libel with some kind of utter certainty, is completely contradicted by the facts and the record here. And it’s that kind of willful distortion of the record even in this conversation that I’m referring to when I say that you are claiming to know what you are talking about, when often you don’t.

And that’s a big part of the problem with your discussion of Dunham. You impart the worst possible motive of lying to her, when there’s no evidence to support that. You claim certainty about things that have never been factually established, such as that there were no other students named “Barry” at Oberlin while Dunham was a student there. Breitbart itself admits it can’t say that with any certainty, since they didn’t have access to the student rosters during those years. They did what they could to look for other “Barrys”, but they couldn’t do much. Mostly, they seem to have just asked campus conservatives if they knew of any other Barrys. Hardly a scientific way to establish a fact.

My own statistical analysis was straightforward, in simply applying the frequency of the name “Barry” nationwide for children born in 1990, and multiplying that number times the number of students who attend Oberlin. I never presented the results as some kind of “certainty”. It’s merely a simple probability, and with numbers that small, the actual outcome could range pretty high. It’s certainly quite possible that there would be none, or ten, depending on things from demographics to sheer chance. But the truly weird thing is that you again impute some kind of certainty on my part to the outcome, which I never did at all. Anyone who thought I was implying such a thing understands nothing about statistics. Again, an example of something you seem not to understand, and get wrong over and over, out of sheer animus towards me, it seems. And all that does is weaken your arguments on the issue.

Which is probably the biggest tell of all. You seem to have abandoned any attempt to actually look at the case at hand, and are trying instead to make the case about me. Since you are a lawyer, do you really think that Barry1 has a case? I haven’t heard you weigh in on that. Why not? Is it because he doesn’t have one, or because it would be embarrassing to admit it at this point? Instead, you seem to be trying to build some case against me, which has no value in itself other than to distract the conversation from the actual case at hand, and the lack of evidence that Dunham was targeting Barry1 at all. Do you honestly think that she was? And if not, where’s the case for anything more than negligent libel, if that. You’d think a guy with as much legal expertise as you claim would center his arguments on core issues like that, rather than trying to falsely convict me of making unambiguous statements about the law, when I did the exact opposite, and actually asked more than once for clarification from those who do know better.

You’re starting to remind me of the lawyer who harrassed that Chinese restaurant owner over a $4 bill, when the guy already admitted to a good faith mistake. Somehow, that’s not enough for you. Why not get back to the actual meat of the matter here? Or is it that you can’t, because there’s not much there for you to complain about?

#21 Comment By tbraton On December 13, 2014 @ 7:28 pm

Aha! In searching for something else entirely, I happened across this post by Church Lady in response to a blog of former publisher Ron Unz on TAC:

“Church Lady says:
September 24, 2012 at 3:53 pm
I’m a confirmed liberal-progressive who like the author, assumed the scientific consensus was real. . . .”

That may explain the ardent defense of Lena Dunham. It may also explain the ignorance of law and statistics.

#22 Comment By tbraton On December 13, 2014 @ 8:08 pm

Since the subject of this blog is a “memoir,” I thought I should draw everyone’s attention to a piece I just read on Ron Unz’s website “The Unz Review” written by late leftist (Marxist) Alexander Cockburn about Elie Wiesel’s “memoir” “Night” supposedly based on his experiences at Auschwitz. Cockburn’s piece was reprinted on October 21, 2014 by Unz, but it originally appeared in CounterPunch newsletter February 2006. I have never read “Night,” which one Jewish authority in the piece labels “the most read of all Auschwitz memoirs,” but Cockburn’s piece does a devastating job of debunking Wiesel’s “memoir,” citing other Jewish survivors of the Holocaust and Jewish historians who seriously question numerous aspects of Wiesel’s account.

Ironically, Wiesel’s “novel/memoir” “Night” was first published in English in 1960, after first being published in various languages, starting with Yiddish, in earlier years. After James Frey’s “memoir” “A Million Little Pieces” encountered credibility problems after being vigorously promoted by the Oprah Book Club and had to be withdrawn, Oprah picked up the reprinted version of “Night” in 2006 to repair the damage. Hence Cockburn’s rigorous debunking of a memoir that had appeared years earlier and was largely the basis for Wiesel’s being awarded the Nobel Peace Prize in 1986. It’s quite startling to discover that one of the iconic works of Holocaust literature is basically a pile of lies.

Here, for example, is just one illustrative paragraph from Cockburn’s piece, which illustrates one of the contradictions in Wiesel’s historical account:
” In his 1995 memoir, All Rivers Run to the Sea Wiesel writes that at the age of 18, recently liberated from Auschwitz, “I read The Critique of Pure Reason ­don’t laugh! ­ in Yiddish.” Finkelstein comments, “Leaving aside Wiesel’s acknowledgement that at the time ‘I was wholly ignorant of Yiddish grammar’ The Critique of Pure Reason was never translated into Yiddish.” Imagine the lacerations Frey would have endured for making that sort of empty boast.”

It is better to read the entire Cockburn piece to appreciate how a professional journalist does his job, but here are some relevant extracts which touch on the problems of reading “memoirs”:

“I asked Hilberg what accounts of the death camps and the Holocaust did he admire most. ‘That really depends on the reader. I don’t have that kind of favorite. For my purposes, obviously they have to be correct.’ ”

“‘Nor am I disturbed when popularizers of history excavate the monographs of the footnote writers [among whom Hilberg included himself] and, distilling the contents, highlight story and drama for a large reading public.There are, however, limits. Among the practices that give me discomfort is the creation of a story in which historical facts are altered deliberately for the sake of plot and adventure.’”

“Then a page later Hilberg continues, “If counterfactual stories are frequent enough, kitsch is truly rampant The philistines in my field are truly everywhere. I am surrounded by the commonplace, platitudes, and clichés. The first German publisher of a small volume, containing my introduction and documents about the railroads [viz. their role in the destruction of the Jews] inserted a poem for which, he said, he had paid good money, describing human beings in freight cars including children whose eyes glowed like coal . The manipulation of history is a kind of spoilage and kitsch is debasement.”

“’In 1981’, Pfefferkorn remembers, ‘Wiesel invited me to give a talk to his seminar students at Boston University. In the course of my talk, I discussed the relationship between memory and imagination in a number of literary works. I then pointed out the literary devices he used in Night, devices, I stressed, that make the memoir a compelling read.'” [His remarks infuriated Wiesel who then attacked the very man he had invited to speak at his university, BU.]

“As he roosts on his pile of gold amid the abuse of Oprah and the literary world, Frey can comfort himself with the thought that Night is not how “it really was”, and that even though there is a vast gulf between what Wiesel actually endured and Frey’s lies about his own life, when it comes to making literature he and Wiesel were both in the business of artistic and emotional manipulation, of dressing fiction up as truth.”

[Note: Since I was not sure of Ron Unz’s current relationship with TAC, where he once served as publisher (as well as financial angel), I did a little Googling and discovered that he had ceased being publisher in 2013. I don’t know whether his relationship with TAC is still good, but I would highly recommend his new website, The Unz Review, which features many familiar conservative and not-so-conservative voices. Personally, I became convinced of Mr. Unz’s devotion to the First Amendment and its underlying belief that truth is only possible through free and unfettered debate, and I thought his project of digitally preserving the literary heritage of the U.S. is as worthy of admiration as Andrew Carnegie’s decision to fund the establishment of libraries throughout the U.S. (I was born and raised in D.C., and our central library, a lovely marble structure, was known as for a long time as the “Carnegie Library.”) I once took a gentle poke at his blog, and he took it quite well, which showed me that he at least has a good sense of humor.]

#23 Comment By tbraton On December 13, 2014 @ 8:16 pm

In fairness to Church Lady, I must note her following comment in the same blog I cited above:

“Like the author, I can’t say for sure what exactly is happening, but I will say that the skeptical arguments and data are very strong, strong enough not only to cast doubt on the consensus, but to make the possibility of catastrophic warming a mythic fear that we need not treat seriously.”

Well, Church Lady, we agree on global warming. I too am a confirmed skeptic. There may be hope for you yet. As I recall, Unz too was an admitted liberal who had become increasingly skeptical about man made global warming.

#24 Comment By tbraton On December 14, 2014 @ 4:28 am

Church Lady, here is what you actually said, despite what you now contend you said:

On libel and malice (12/10 at 6:11 pm): “I suppose he could try to make a case for negligent libel, if there’s even such a thing. But malice doesn’t seem to be in the mix. There’s no evidence that Dunham even knew Barry1, and even Barry1 doesn’t claim she did, so where’s the malice? Without malice, as far as I know, there’s no libel.”

On statistics and the frequency of Barry at Oberlin (12/10 1:38 am): “That’s roughly true. But then, tbraton’s link above, which gives the frequency of the name “Barry” as 140th in 1990, is the most relevant. . .It’s only six years off, and so it’s probably pretty close to that in 1984 also. Which makes it a pretty common name in that age group. Since Oberlin has about 3,000 students (not sure what the total was when Dunham attended), on average there would be about 4 Barry’s at the school at any given time. And given the yearly turnover, that would mean approximately 8 whose time there coincided with Dunham’s.”

Speculation about the choice of “Barry” (12/10 at 2:11 am): “It’s quite possible that Dunham gave him the name “Barry” only because his low voice reminded her of Barry White. Seems reasonable enough. Which would pretty much destroy the idea that she was targeting anyone in particular with the name choice, or even that it was just randomly chosen.”

BTW here is how I responded to ratnerstar to which neither he nor you have responded to intelligently
(12/10 at 10:28 am):
“‘Why is it “crucial” how many “Barry’s” were registered at Oberlin during Dunham’s sojourn there? Is this something she could be expected to know?’
As I explained earlier (do you people bother reading the comments?), John Nolte in his well researched article in Breitbart specifically says “Breitbart News could find no record of anyone named Barry graduating or attending Oberlin College in 2005, 2006, or 2007 — other than Barry One.” Lena Dunham specifically identified him as “Barry” in her book, and the heading of the chapter in which she makes the charges of rape is simply “Barry.” Dunham made no disclaimers with regard to “Barry” as she did in the case of another individual where she specifically said she was not using his real name. As I also noted, it is totally irrelevant how popular the name “Barry” is in the general population; what is essential is how many “Barry’s” were registered at Oberlin during the years in question. There appears to have been only one “Barry” during the relevant years: “Barry 1.” People have naturally assumed that he must be the one who did the dirty deed. Seems to be that Barry 1 has a pretty good case for libel.”

The only “evidence” in the record is Nolte’s claim that he could find only one “Barry” at Oberlin during the years in question. I am not aware of any other evidence challenging Nolte’s contention other than your spurious misapplication of statistics, which demonstrates nothing beyond the fact that you lack even a rudimentary understanding of statistics.

As for my wasting my time “proving” “Barry1’s” libel case, I am not his lawyer, I don’t even know what state he lives in and I have no prospect of being paid for my services. Why would I want to waste my time on such an enterprise? BTW I challenged you to specify those areas where I supposedly made false statements. I am still waiting.

#25 Comment By Church Lady On December 14, 2014 @ 8:29 am

I’ve never hidden the fact that my politics are in the general range of liberal-progressive aims. But as you can see, I’m not afraid to go against that movement when I think they are wrong on something. I think it’s very important to recognize that all political orientations and movements contain falsehoods. No one gets it all right. So I think it’s important to be introspective and critical of even one’s own orientation and movement and political allies. I would think conservatives at TAC would understand that.

As for Dunham, it’s quite hilarious that you think I’m defending her. Just because I don’t think a good case has been made against her for either libel or lying, doesn’t mean I’m not very harsh on her otherwise. Obviously, you haven’t read my posts if you think I see her as someone I’d want to defend even on the face of it. Her own words indict her, so it’s utterly besides the point to try to make a case that she’s lying. Sometimes when a person tells the truth about themselves it reveals far worst things about them than any investigation might. I think that’s clearly the case with Dunham, which is why I’ve said that conservatives are burying the lede in this story, looking for some way to make conservatives the victim here, rather than seeing what a mess Dunham makes of herself as she tries to position herself as the victim of a “rape”. But as I said before, that’s the problem with the extremists in both the conservative and progressive camps: they are so in love with their own victimization, they can’t see what fools they are making themselves out to be, and in the process hurting their own cause worse than any of their critics could.

#26 Comment By tbraton On December 14, 2014 @ 10:43 am

“But as I said before, that’s the problem with the extremists in both the conservative and progressive camps: they are so in love with their own victimization, they can’t see what fools they are making themselves out to be, and in the process hurting their own cause worse than any of their critics could.”

In case you haven’t noticed, Church Lady, I have never made any derogatory comments about Lena Dunham. Like RD, I have never watched her show (and unlike P.J. O’Rourke, I don’t get paid to post, otherwise I too would have paid to see an episode of “Girls” on my computer), and I haven’t bothered to read her book (I have too many good books piled up waiting to read). As for your placing me in the “extremist conservative” camp, I am a little surprised you aren’t claiming to “have in my hand a list of 205–no, make that 57–of names that were made known to Rod Dreher as being members of an extremist conservative movement and are still posting on Dreyer’s blog and shaping public opinion.”

BTW I agree with O’Rourke’s assessment: “Not that I read it. Who can read a memoir by a 28-year-old? What’s to memorialize? The last 28-year-old who could have written a memoir worth reading was Alexander the Great in 328 B.C., after he’d conquered the known world, but he was too busy conquering the rest of the world to write it.”

#27 Comment By tbraton On December 14, 2014 @ 1:20 pm

“In case you haven’t noticed, Church Lady, I have never made any derogatory comments about Lena Dunham.”

I left out “personal” after “derogatory” and before “comments” in case anyone was wondering.

BTW, if anyone wants to read all about Lena Dunham, there is an extensive, detailed article in the (old) New Republic (11/6/14) about Dunham and her book that I just came across as a result of a link posted in another article I read this morning. [9] Here is what the reviewer has to say about the chapter dealing with “Barry”:

“It’s a relief from the chatty punch lines, airy anecdotage, and sour kiss-offs when Dunham shifts into a more reflective mode and wrestles with experiences resistant to simple pin-down, such as the unforgettable but unrememberable manhandling she received at college, a groggy, painful bout that hovers somewhere in the hazy junction between rape and rough sex, coercion and a one-night stand gone bad. Hazy because Dunham doesn’t recall much of what transpired that night, her narrative punctuated by extended blackouts. The scene: Oberlin College, in a loft above the video store where “a particularly raucous party” was in progress. Dunham and her friend Audrey knocked back two beers each and split a Xanax before they arrived; Audrey, complaining of dizziness, soon left, and Dunham stayed, snorting “a small amount of cocaine off a key,” then, feeling exuberant, jumps on the back of a friend of hers named Joey, only it isn’t Joey, it’s a mustache guy with a macho front named Barry, one of Oberlin’s few campus Republicans. Needing to pee, Dunham heads out to the parking lot, where’s she’s followed by Barry, who jams his fingers up her as she prepares to initiate urination. “I’m not sure whether I can’t stop it or I don’t want to.” A friend named Fred sees her leaving with Barry, who’s steering her back to her apartment (“apparently I’ve told him where I live”), and, recognizing Barry is bad news, tries to intervene. Dunham verbally shakes him off and Fred departs.

The scene shifts to Dunham’s apartment, where there’s a woozy, fumbling coupling during which Barry may or may not have worn a condom. It’s the sort of scene that, were it to be translated to the screen, would involve a lot of blurry fading in and fading out with a few lurid details bobbing in sharp relief, the sounds both near and far, consciousness sinking and rising to the surface in a nocturne of disassociation. (Dunham’s roommate, not home at the time, hears the sounds of the two of them in congress, and, not wanting to interrupt, heads upstairs to sleep with a friend.) Eventually Barry stumbles out the door as Dunham hides in the kitchenette. Soon after she tells Audrey what happened. “Audrey’s pale little face goes blank. She clutches my hand and, in a voice reserved for moms in Lifetime movies, whispers, ‘You were raped.’ I burst out laughing.”

A laugh spring-coiled by denial, a defensive mechanism activated by brittle irony, but this isn’t a prime-time soap opera and the body knows its own truths that words can’t conjure away. Dunham’s vagina hurt for a week—“I thought a hot bath the morning after would cure it, but it’s just getting worse”—and the after-jolt of being violated throbbed much longer than that. The more she retells the story to others, the closer it circles in to the ineluctable recognition that she was taken sexually violent advantage of. The sex may have been consensual, the jackhammering wasn’t. The problem for this reader is that Dunham’s candor, admirable and doggedly pursuant as it is, can only go so deep because she’s too conversational a writer to chisel to the next layer, to expand beyond the strictly personal, and her recollection of the evening is too gelatinous for a secure hold. The dissolution of boundaries by booze, Xanax, and coke in an already louche environment of sexual abandon didn’t leave her with much to steady herself against apart from her own lousy feelings. So it becomes a story about trauma, self-acceptance, and healing, a muffled
horror with a happy ending. So many memoirs have a wounded heart, and the Barry chapter is Dunham’s. Something awful certainly went down that night (and it needn’t have, it wasn’t inevitable—at three different points Dunham might have been extricated from the quicksand trap she slipped into), yet the exertions of some reviewers and feminist activists to elevate it into a banner statement and social document are right out of the sexual-politics playbook. And I query the point of specifying that Barry was a Republican, unless it’s an ID signal to those classmates of Dunham’s who might be in the know. It’s a political designation that has no bearing on his behavior—misogyny and toxic male sexual prerogative cover a pretty wide spectrum, on campus and off. Anyway, I suspect we haven’t heard the last about Barry, whoever he may be.”

I love the delicious irony of the last sentence above, and I find very interesting his observation that he questioned the point of her designating “Barry” as a Republican. Attention Church Lady: “one of Oberlin’s few campus Republicans.”

#28 Comment By Church Lady On December 14, 2014 @ 2:50 pm

tbraton,

I really don’t see the point of your quotes from me, since none of them prove any of the accusations you’ve made, other than that I originally thought that malice was necessary in a charge of libel, which I also made clear I wasn’t sure of, and asked for input from others about. I’ve long since admitted to being wrong about that, thanks to the input of others. Even so, it still remains an important fact that there’s no evidence that Dunham even knew Barry1, since without knowing him, it’s very hard to make a case of libel against her just for using the alias “Barry” for her rapist, who clearly isn’t guilty of rape by her own account of the encounter anyway. Even Barry1 makes no charge that Dunham actually knew him, so it becomes pretty hard to suggest that she was targeting him. They entered Oberlin at very different times, and appear not to have even socialized in the same circles. So the use of that alias appears to be sheer chance.

Which is why many people here were speculating as to the frequency of the name “Barry” during that time. Someone else provided a link showing that Barry was the 140th most common name for babies born in 1990, with a 0.132% frequency rate. I just did the simple math to clarify that in an overlapping student population over four+ years, the expected number of “Barrys” in a revolving student population of 3,000 would be 4. I nowhere asserted that this mean there were actually 4 Barrys there, as you claim I did. You can’t come up with such a quote, because there is none. So, do you withdraw that accusation? It is you who seem to have no understanding of statistics, and how they work, and for some nutty reason seem to think that no one else does either.

As to why this was thought to be important in that early part of the discussion here, no one had yet mentioned that Dunham’s book included a preamble saying that the names of some of the people in the book had been changed, so at the time we were assuming that Barry was the actual name of the person described by Dunham. Once I learned that fact, it became quite clear that the frequency of the name “Barry” at Oberlin was inconsequential, because it was clear that it was merely an alias. At that point, the only question regarding her use of that alias was whether it was chosen deliberately to slander Barry1 (which seems unlikely since there’s no evidence they knew each other), or whether it was simply chance, or the result of her own association of his voice with Barry White’s, or something else. I think the most obvious explanation is the Barry White characteristic, but we will probably never know.

So for one, you’re not taking into account how the conversation in these comments sections evolved and how new information changed the value of various facts and probabilities.

As for this claim that there were no other Barry’s at Oberlin during Dunham’s stay there, why are you making an issue of that, when by your own admission the number of Barry’s is irrelevant, and it’s not at all been verified by any checking of the records as you claim. The story in Breitbart shows that they were not given access to any records by Oberlin, so how can you claim that they checked the records? They did not. Even the radio station would not cooperate with them. So what did they actually do to find other Barry’s during the four years that Dunham attended school there? Not much, it appears. In fact, their whole search for a Barry who might have been the person Dunham is describing in her book was a complete waste of time, since Dunham confirms that “Barry” was an alias, and not the fellow’s real name. So what does it matter how many Barry’s attended Oberlin? Not at all, it would appear. So why do you harp on about it? Why do you think Breitbart’s inability to find another Barry even matters one way or the other? Unless, perhaps, Dunham and he knew each other and she chose the name out of spite over something else entirely, but there’s no evidence at all for that.

I find it very amusing that you still can’t come up with any reasons to support the notion that Dunham slandered Barry1, and no legal reasoning to provide even a speculative rationale for the lawsuit. Just an excuse that you’re not going to take on the case. That’s pretty damning. Where’s the beef then? What substance is there to anything you’ve said here, against either Dunham’s account or my discussion of it here? You seem to literally have nothing, just some sort of vague resentment. God only knows where that comes from.

#29 Comment By tbraton On December 14, 2014 @ 8:00 pm

Church Lady, you certainly waste a lot of time posting utter nonsense.

“Just an excuse that you’re not going to take on the case. That’s pretty damning.”

Well, that is a pretty unique interpretation of what I said: “As for my wasting my time “proving” “Barry1′s” libel case, I am not his lawyer, I don’t even know what state he lives in and I have no prospect of being paid for my services. Why would I want to waste my time on such an enterprise?” I forgot to add that I am retired from the practice of law and libel was never an area of the law that I practiced. Also, I think “Barry 1” already has a lawyer. Now, if I had originally added those thoughts, I am sure you would have posted something along the lines of
“you think so little of Barry 1’s case that you refuse to come out retirement, track down Barry 1 and elbow his current lawyer aside. That’s pretty damning.” Damning of me or you?

Since you are the only one seeking my legal opinion of Barry 1’s potential libel suit, I have a simple proposal. You can retain my services (the general going rate in my area is around $400 an hour, but I will cut you a deal and only charge $390 per hour). I would expect a retainer of $5000 which you can forward to Rod, who, I trust, will forward it to me. I will then research the law of libel and prepare a detailed legal memo that I will forward to you through Rod. What say? I await your retainer.

“no one had yet mentioned that Dunham’s book included a preamble saying that the names of some of the people in the book had been changed,”

Here is what Random House stated in their release acknowledging “Barry” was not the real name: “As indicated on the copyright page of Not That Kind of Girl by Lena Dunham, some names and identifying details in the book have been changed.” The copyright page is not the same as a preamble.

“The story in Breitbart shows that they were not given access to any records by Oberlin, so how can you claim that they checked the records?”

According to the Breitbart article by John Nolte: ” After a good-faith search through the campus newspaper archives and Oberlin College graduation announcements (available in the school archives), at least in those records, Breitbart News could find no record of anyone named Barry graduating or attending Oberlin College in 2005, 2006, or 2007 — other than Barry One. ”

“I just did the simple math to clarify that in an overlapping student population over four+ years, the expected number of “Barrys” in a revolving student population of 3,000 would be 4. I nowhere asserted that this mean there were actually 4 Barrys there, as you claim I did. You can’t come up with such a quote, because there is none.”

Here are your actual words from one of your earlier posts which clearly indicates to me that you were insisting there were at least 4 Barrys at Oberlin: “Since Oberlin has about 3,000 students (not sure what the total was when Dunham attended), on average there would be about 4 Barry’s at the school at any given time. And given the yearly turnover, that would mean approximately 8 whose time there coincided with Dunham’s.” Your memory of what you think you said conflicts with what you actually said.

Liberal-progressive, huh? Not surprising. Why do you spend so much time posting on The American Conservative?

#30 Comment By Church Lady On December 15, 2014 @ 2:38 am

tbraton,

Please quote where I asked you to prove anything about Barry1’s libel case. I didn’t ask you to take on his case, or any such nonsense. I just asked for your general opinion, based on what we know, nothing more. You’ve already given your opinion on all sorts of things, especially about me, so why not give an opinion about Barry1’s libel case. Surely it would be more interesting than mine.

Why do you keep making these things up? First you accuse me of trying to offer my legal advice, when I did the exact opposite, and actually asked for legal advice from people with a legal background here. And now you claim that I asked you to prove Barry’s libel case, when all I asked you for was your opinion. Now you want to charge me $400 an hour for your opinion. When I haven’t charged you a cent for mine. Not even Rod charges you anything. The narcissism is thick in this one.

We’ve been over this all way too much. If you can’t offer an actual opinion about the case, there’s really nothing more to discuss at this point. But like I say, that’s pretty damning, when even a conservative lawyer heavily slanted towards his “side” can’t offer even one word of support for him. I guess you would rather cross examine me than actually discuss the actual matter at hand. It’s one of the reasons people despise lawyers – all smoke and mirrors to distract from the poverty of the case being discussed.

#31 Comment By tbraton On December 15, 2014 @ 10:58 am

“Now you want to charge me $400 an hour for your opinion. When I haven’t charged you a cent for mine. ”

Who in his right mind would pay someone who admits to not being a lawyer even one cent for his or her legal opinion? Especially someone who has already shown that she doesn’t have a firm grasp of the law? I believe any attempt by you to charge for legal advice would constitute the illegal practice of law without a license and subject you to hefty fines.

BTW one point I have made over and over (but which doesn’t seem to have penetrated your brain) is that libel law varies from state to state, and we have no idea what state Barry 1 resides in. Until that is known, it would be foolish to waste any time speculating about Barry 1’s case. According to Dr. Johnson, “only a fool writes for anything other than money.” I believe the same could be said about practicing law. If I had to guess, I would think the dispute will be settled by Random House and Dunham paying a hefty amount of money in an undisclosed settlement, just to avoid the large amount of legal fees that fighting the case would entail and to avoid the continuing embarrassment that lengthy litigation would provide. In fact, Random House has already offered to pay the legal fees incurred by Barry 1 up to now, so that is a pretty good indication that they realize they have a problem.

#32 Comment By Church Lady On December 15, 2014 @ 3:43 pm

Your narcissism is only matched by your lack of humor. You might try reversing the two.

It’s pretty clearly a nuisance lawsuit seeking quick settlement money precisely because they know the publisher wants to avoid costly legal action. As mentioned, the law for negligent libel (if it even rises to that) only allows for actual out of pocket losses, nothing more. The publisher of course just wants to get rid of the case, not necessarily because it has any merits, so they’re offering to pay whatever legal expenses have been incurred (couldn’t be that much). Even you can’t point to any merits in the case. But I assume the guy wants some actual money out of this, so it may drag on. Lawyers, what bottom-feeding scum most of them are. But I bet you already know that, having made a living that way. And still trying to drum up business here!

#33 Comment By tbraton On December 15, 2014 @ 8:11 pm

“It’s pretty clearly a nuisance lawsuit seeking quick settlement money precisely because they know the publisher wants to avoid costly legal action. As mentioned, the law for negligent libel (if it even rises to that) only allows for actual out of pocket losses, nothing more.”

I realize, based on your earlier posts, that you are going to contend that you weren’t making a definitive statement of the law (because of your disclaimer on the copyright page that you aren’t a lawyer), but that quoted sentence appears to be a clear, unqualified statement of the law of libel. Here is what a very quick Google search turned up:

“Damages Awarded for Defamation in Florida

Among the damages for defamation in Florida include:

-actual damages
-compensatory damages
-punitive damages”

Now that seems to completely contradict what you were telling us about “negligent libel” (I hope you realize by now that is the general standard absent a “public figure” (the definition of which varies by state) in which case the plaintiff would have to prove “malice.” Without “negligence,” there wouldn’t even be a case, but Random House’s and Lena Dunham’s belated concession that “Barry” was a pseudonym would clearly appear to satisfy the “negligence” factor.) My conclusion is that you are an ignorant person desperately trying to convince everyone that you are smarter than you are, an admitted non-lawyer trying to teach us about the law. How sad.

However, all good things must come to an end so I will use a traditional sign (I don’t know if it is still used) to indicate that this is my last post on this thread and my last post responding to one “Church Lady.”
-30-

#34 Comment By Church Lady On December 16, 2014 @ 4:12 am

Since you aren’t going to post again, I don’t expect any reply, but since I’ve invested this much time in this, I feel like I owe it even just to myself to reply:

Here’s the source I originally based my comments on. I can see that I should have quoted this directly, rather than from memory, in that I used the word “negligent” rather than “inadvertent”. Again, not a lawyer, so even though they seem synonymous, they have different legal definitions. Here’s the source:

[10]

And here’s the relevant quote:

While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue. Proof of malice, however, does allow a party defamed to sue for “general damages” for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called “special damages.”

So in a case of inadvertent libel, with no actual malice involved, any award (if a case could even be made) would not allow for general damages, only special damages.

It’s pretty clear from all the evidence that 1) Dunham’s “Barry” is an alias, and that her memoir included a disclaimer up front that several names in her book were fictitious, and 2) that most of the identifying characteristics given by Dunham do not fit Barry1, so that no one who knew him personally could reasonably confuse the two, and 3) it doesn’t even appear that Barry1 was known to Dunham or a target of Dunham’s charges, so that the alleged libel is merely a case of mistaken identity based solely on a first name and a political orientation in common. Therefore, it certainly does look like a case of inadvertent libel.

Though again, I could certainly be wrong, since I’m not a lawyer. (how many times must I repeat that? I mean, Rod and many other posters have offered their opinion that there’s a strong case for a lawsuit here, but somehow you only single out me for criticism. Bias much?)

However, there’s one other possibility that could confuse the matter of damages, which is:

“Libel per se” involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages.

It could be inferred that since Dunham accuses her “Barry” of rape, that it’s already a malicious defamation. But since she wasn’t referring to Barry1, and her book already had a general disclaimer at the front, it’s hard to see how the malice applies to Barry1. She certainly has malice towards the actual “Barry” she had sex with, but there’s no evidence of malice towards Barry1, who isn’t that fellow. But I gather this is the sort of thing judges and legal precedents would have to decide.

Anyway, it certainly appears that you are wrong that the issue of malice only applies to public officials. It also appears to apply to the issue of damages even in ordinary libel cases. I’m sure glad I didn’t pay that $400 an hour for incompetent legal services you wanted. How is it even possible that a trained lawyer wouldn’t be aware of this, when I discovered it with just a few minutes of googling? Even if libel isn’t your specialty, it’s a bit shocking that someone can pass a bar exam and then pontificate loudly on the Internet about their expertise, and get such a basic matter of law wrong.

I suppose if I look back and examine all the false accusations you’ve made against me, including accusing me of criminal behavior (offering legal advice without a license), I might have grounds for a libel lawsuit against you myself. What’s your legal opinion on that? The malice, at least, seems quite clear. But no worry, my damages can easily be paid back in laughter, so the judgment will only cost you your excessive self-esteem.

#35 Comment By tbraton On December 16, 2014 @ 6:43 pm

I must attach a postscript to my final post above.

Church Lady made the following statement in response:
“I suppose if I look back and examine all the false accusations you’ve made against me, including accusing me of criminal behavior (offering legal advice without a license), I might have grounds for a libel lawsuit against you myself. What’s your legal opinion on that? The malice, at least, seems quite clear.”

This is what I said in my post of 12/15/14 at 10:58 am to which Church Lady is obviously responding:
“I believe any attempt by you to charge for legal advice would constitute the illegal practice of law without a license and subject you to hefty fines.”

And Church Lady somehow interpreted that as a “false accusation” of “accusing me of criminal behavior (offering legal advice without a license).” Go back and reread that sentence carefully, Church Lady. It does nothing of the sort. There is no way in the world you or anyone else could properly interpret that sentence as accusing you of criminal behavior. Note the key words “I believe,” “any attempt by you to charge,” and the key verb “would” (a conditional verb form, conditional future to be exact). Nothing in that sentence actually accuses you of criminal behavior, and I have no evidence that you have ever charged for your “legal advice.” (I doubt anyone would be that stupid, but, as P.T. Barnum allegedly said, “there’s a sucker born every minute.”) There is an implied “if” in my sentence; I could have said just as easily “I believe that, if you were to sell legal advice, you would (might) be prosecuted for practicing law without a license. . . .” Since I no longer practice law and probably live in a different state than you, it concerns me not in the least, and I will leave your case to the bar association in your state of residence.

One last observation, Church Lady. You seem highly pleased with your legal research, but the thing that strikes me is that you are content to wallow in generalities. I have lost track of how many times I have pointed out that libel law varies from state to state, a principle you seem to have a hard time grasping. You can’t tell me what state Barry1 lives in. Any competent lawyer would first want to know that before doing any research. You display your amateur status by tossing around general principles that may not apply in Barry1’s case.

#36 Comment By Church Lady On December 17, 2014 @ 1:39 am

tbraton,

Well, it seems that we can add to your lies the one about not posting here again.

And we can also confirm that you lack any sense of humor.

And yes, that quote does contain an accusation of criminal activity on my part, of offering legal advice without being a licenses lawyer. However, you have never actually quoted anything I’ve said that actually constitutes giving anyone legal advice. This is a comments section of a rather obscure blog (sorry, Rod), not a forum where people write in asking for legal advice. This is a place where people discuss issues of the day, in this case, Lena Dunham’s rape controversy. It’s not at all expected that one must be a lawyer to discuss the issues, or to offer up opinions about these matters. Rod certainly did not when he gave some very explicit legal advice to Barry1 (not in person, of course, but as a general bit of encouragement:

“Sue the bastards. That’s the only way they will learn. Make the publisher withdraw the whole damn book, for which they paid a $3.7 million advance (which they will probably be able to recoup from Dunham; book contracts typically contain language saying that the author guarantees the material to be truthful, if presented as truthful). I bet this Barry will win, too.

Rod gives a whole host of legal advice to Barry1 here, but I don’t recall you admonishing him for doing that when he’s not a lawyer. And yet, you admonish me multiple times for allegedly offering legal advice, which I never did:

…Jim and Lynn Gazis-Sax have already pointed out Church Lady’s false legal advice…

and here also:

So, Church Lady, you should chuck your totally unreliable “legal advice” in the same trash heap as your statistical analysis

and here again:

You acknowledge that you are not a lawyer yet you insist on giving us legal advice.

That’s four instances in which you accuse me of giving legal advice without having license to practice law. One instance might be written off to mere sarcasm, but four amounts to a pretty clear case of malicious accusations of criminality.

And yet, nowhere did I ever address Dunham or her publishers, or Barry1, and recommend any legal action on their part, as Rod (and a few others) did. I merely commented on the case itself, trying to figure out if there is a case for libel that could stand up in court, and what the law has to say about allegations like this. I asked for input from others on this, rather than just assuming, as Rod did, that she was in big trouble. Of course, like me, Rod didn’t have all the information at hand, and lacked knowledge of the limits of libel law. No big deal. Often in these comments sections, we start off with greatly imperfect knowledge of the subject, and make various speculations and offer information in pieces and parts that helps eventually get a better picture of what’s going on, what the context is, what the law or politics might be, etc. You asked me why I comment on this conservative blog, and this is why: the comments section is a place where I learn a great deal, often in an enjoyable but contentious way. It’s not a place where anyone, Rod included, is expected to be an expert in order to comment or offer and opinion, or where we need to be afraid to be wrong. I’m certainly not afraid, and I try to be open when I’m unsure of something, as in this case. When you accuse me of being an amateur, well, I have to laugh, because of course I am. I was completely up front about that, and I don’t mind having it pointed out. But I do mind having that used as a humorless cudgel to batter me for my imperfect knowledge of the law, or of Dunham’s life and story.

Like you, I have never watched Dunham’s show, never read her book, and have no particular love for her as a public figure. Rather the opposite, actually. I gather that’s she’s a controversial Brooklyn hipster-social-progressive, but I’ve never actually heard a political opinion of hers. I don’t get the impression that she’s a serious political figure in any sense, just someone who depicts a fictional slacker hipster lifestyle on HBO. When her show first became popular, I asked some of my young, college age progressive feminist friends about it, and they said it was garbage and a waste of time, and that I shouldn’t bother with it. So I never did.

My interest in the case was purely on the issue of whether there really was a case of either rape or libel here. I laid into Dunham very strongly when I came across an actual account of her so-called rape, offering the opinion that it wasn’t rape at all. And yet, for some reason you didn’t admonish me for offering “legal advice” in that instance, even though I’m not a criminal lawyer or a prosecutor. Why not? Is it because you just happen to agree with me? Probably, but it still raises the question of why you accuse me of defending Dunham, when clearly I attacked her claims of rape, which is far more important than any possible libel she might have committed. Claiming that what happened to her that night was rape, when her own account contradicts that claim, is the real problem with her story, not the issue with Barry1, which seems to be purely inadvertent.

Getting back to our dispute: As I said at the beginning of my comments on this thread, I was under the impression that malice was necessary to make a case of libel, but I also openly said I could be wrong, and that if others had better knowledge of the law, I’d stand corrected. Which I was, and rather graciously by a couple of people. You, however, were exceptionally snide and condescendingly rude. You unequivocably asserted that malice was irrelevant except in the case of public figures, which turns out to be badly wrong. Checking up on US libel law, I discovered that malice is indeed relevant to the awarding of damages. When I first mentioned that in this case the damages would seem to be limited to actual monetary losses, you again falsely asserted that this was wrong. And now that I’ve provided quotes from a legal dictionary which show that you’re wrong on that, you are strangely silent and non-responsive on that issue, merely invoking the fact that libel law can vary from state to state. But that’s not what you said before. You made no qualifications whatsoever to your assertion that malice has no bearing on libel among non-public figures. Which means that all your accusations against me for being wrong on this issue were at least partially wrong themselves, and this coming from someone who claims to be an actual lawyer.

You also claimed that I didn’t understand statistics, when you say that my statistical argument falsely

“proves” there were at least four “Barries” at Oberlin during the relevant years in question, rather than the one asserted by John Nolte in his well-researched Breitbart piece (which no one has challenged btw). Of course, we “know” that one of those “Barries” was Barry White, even though he had been dead for a number of years and the legitimacy of his claim is much in doubt. You acknowledge that you are not a lawyer yet you insist on giving us legal advice.

And yet, your quote of me on this makes it clear that I only said that the statistical facts only show that “on average”, there would be 4-8 Barry’s in a population of 3,000. I pointed out that even this average could vary based on demographics. And yet, you claim that I somehow said this “proves” that there were four Barrys at Oberlin at this time. Which is completely false. And the fact that you kept repeating it, makes it more than false, but a lie. Nowhere have you shown a quote in which I said anything of the kind. A statistical “average” is not proof of anything other than probability. I relied on solid source for that probability calculation, and nowhere have you contradicted the calculation I used, which is very simple. Whether or not there was actually only one Barry or one hundred at Oberlin at that time is simply irrelevant to the statistical average expected result. Assuming that it matters tells us that you not only don’t know law very well, you are also horribly ignorant of how statistical averages work. They are not contradicted by limited results from a small sample size. The average remains the average because of the total number of Barrys born in any given year divided by the total number of children born. Since you seem not to grasp that, it really takes some nerve to accuse me of not understanding how statistics work.

But getting back to the law, we have this remarkable statement from you to consider:

A competent lawyer would not go into court and make statements about the law without first researching the law in question. Which only tells us that you are not a competent lawyer, since you make false statements

Which by your own logic only tells us that you are not a competent lawyer. You made unequivocal statements about libel law which turned out to be false. You claimed that malice has no place in libel law except in cases of public figures. Wrong. You claimed that I was completely wrong when I said that in this case it looked like there was no grounds for collecting damages other than economic losses. You didn’t even research the subject when you made those statements. Or if you did, you did so incompetently. What kind of lawyer does that? An incompetent one. You are the very thing you keep accusing me of, when I never even claimed to be a lawyer, or to have any serious understanding of the law on libel, but repeatedly asked for the opinions of others who did, including you. To which you only offered insults and a demand for large legal fees if I wanted your opinion on the matter. Which is pretty reprehensible, especially given your lack of any competence in the practice of even the basic law on this matter.

You did state that libel laws vary from state to state, but nowhere did you say that the issue of malice varies at all, in any respect whatsoever, but repeated that I was an incompetent amateur for claiming otherwise. If you had demonstrated some basic humility in the matter, that would be fine. But instead, you displayed an outrageous arrogance, and used my own amateur investigations in a vicious, highly personal attack on me, which is extremely embarrassing now that we can see how incompetent and wrong you were on even this basic element of the law.

As for “tossing around general principles”, that’s very much what this blog and comments section is about. It’s not even a criticism. Whether or not they apply to Barry1’s case is precisely what we are discussing here. It’s what Rod began the discussion with. It’s what many others have discussed as well. Why are you singling out me for these increasingly personal attacks, especially given that I’ve made many cavaets about my lack of expertise in this area, when others, including Rod, gave none? It seems like you have an ax to grind, and are incapable of just admitting you were wrong and out of line and that you’ve taken these attacks on me way, way too far, to a truly embarrassing degree that’s just exposed your own basic legal incompetence, by your own stated standards. Time for you to show a little humility for once and ask for some forgiveness. It’s not like I’m unable to give it.