Bezos has options if he wants to 'Gawker' the National Enquirer
Jeff Bezos may have called American Media’s bluff by exposing its "extortionate proposal" to force him to drop an investigation of its National Enquirer tabloid. But he’s still got plenty more options.
The Amazon chief published a blog post alleging the publisher of the National Enquirer tried to blackmail him with embarrassing photos. Now federal prosecutors are reviewing the tabloid’s handling of its story about his extramarital affair to determine if the company violated a non-prosecution deal.
Bezos could sue, claiming AMI tried to blackmail him with embarrassing photos of himself and a woman who wasn’t his wife. He could sit back and watch as prosecutors decide whether to charge the company and its executives with crimes. Or he could continue to finance the private investigator who is digging into the Enquirer’s methods and AMI’s president, David Pecker.
Or Bezos, the billionaire founder of Amazon.com and owner of the Washington Post, could do all three.
"He’s certainly got leverage now," said Jonathan Askin, a Brooklyn Law School professor.
A well-funded legal attack against a media company can be devastating, as Gawker Media discovered after losing a multimillion-dollar verdict for posting part of a sex tape of Terry Gene Bollea, better known as the professional wrestler Hulk Hogan. A Florida jury awarded $140 million to Hogan, forcing Gawker into bankruptcy. The award was reduced in 2016 in a $31 million settlement.
If Bezos sues, his lawyers will have several legal theories to choose from.
For starters, Bezos could sue for copyright violation, as his lawyers have apparently already argued, saying he has a copyright on his own texts and photos. He could claim an invasion of privacy or that AMI intentionally inflicted emotional distress.
Or he may seek to enforce his "right of publicity," the right to control and profit from the commercial use of his name, image and other unique traits. Askin pointed to a successful suit by Bette Midler against Ford for using a sound-alike in a series of car commercials in the 1980s.
"Very wealthy people like Bezos can often find lawyers who can construct extremely creative arguments," said Benjamin Zipursky, an expert in defamation and privacy law at Fordham University School of Law in New York.
But none of those claims may survive against a media outlet like AMI, which would argue that Bezos is a public figure whose wealth and fame make him a legitimate subject of scrutiny. And that’s especially true if the Enquirer had legal possession of the photos.
"The Supreme Court has declared in very strong terms that there are strong First Amendment protections" for media defendants, Zipursky added.
Bezos is represented by Martin Singer of the Los Angeles firm Lavely & Singer, whose clients include A-list celebrities. Singer forced the Enquirer to apologize to actor Tom Hanks for a story saying he was getting a divorce, and he helped Charlie Sheen win a multimillion-dollar settlement with Warner Bros. after the star left the show "Two and a Half Men."
For Pecker and AMI, a Bezos lawsuit may be the least of their problems.
Former federal prosecutor Bill Portanova says AMI may be open to criminal charges for extortion. He likened AMI to a mistress threatening to disclose an affair unless paid, with AMI’s demand for an end to Bezos’s investigation as the quid pro quo for not publishing compromising photos.
“Bezos is being told that if he doesn’t drop the investigation, it will be bad for him. That sounds like classic quid pro quo," said Portanova. “At a minimum, this is reckless. At worse, this is extortion. To threaten to expose someone in order to get them to pay, or to not do something, that is the definition of criminal extortion.”
But Christopher Kutz, a professor at Berkeley Law School, said a prosecution would have problems. In a typical extortion case, he noted, the threat comes first. With Bezos, the Enquirer’s emails came amid negotiations between the two sides, and their lawyers could argue that this was hard bargaining - “a tool they have a right to use,” he said.
AMI said Friday it “fervently” believes it acted lawfully.
Bezos, the world’s richest man, said last month that he and his wife, MacKenzie, were divorcing, in an announcement that came just hours before the Enquirer reported that Bezos had been having a relationship with another woman. Bezos hired investigator Gavin de Becker to learn how the texts were obtained.
In a stunning public blog post Thursday night, Bezos published letters from lawyers representing AMI, who demanded he drop the investigation or else it would publish more photos. Bezos accused the Enquirer publisher of extortion.
The episode is under scrutiny by federal prosecutors in New York, who are now reviewing whether AMI violated an earlier cooperation deal with the government, according to two people familiar with the matter. Under the agreement, AMI avoided prosecution over secret payments to women who claimed relationships with President Donald Trump as long as it committed no crimes for three years.
If prosecutors toss out the deal by finding that AMI committed a crime, the company could find itself as a defendant in a criminal case over the hush-money payments - a prosecution Bezos would certainly watch.