Kos responds to the growing controversy over “Kosola” in a rather bizarre post.
TNR and its enablers are feeling the heat of their own irrelevance and this is how they fight it — by undermining the progressive movement. Zengerle has made common cause with the wingnutosphere, using the laughable “kosola” frame they created and emailing his “scoops” to them for links. This is what the once-proud New Republic has evolved into — just another cog of the Vast RIGHT Wing Conspiracy.
TNR has, for at least the last quarter century that I’ve followed it, been a center-left publication rather than a hard left magazine such as
Moreover, this is a sleight-of-hand. The arguments made by Zengerle and company about the alleged payola between Armstrong and Kos are factual and ethical, not partisan. Surely, TNR would attack a similar story involving Pajamas Media or Michelle Malkin with glee.
But I do admit being surprised by the sheer creativity of their invented attacks, such as my supposed “pay for play” scheme. Let me be crystal clear. I deny that charge completely. I have stated the sources of my income and they do not include money from people asking me to shill for anyone or anything. Problem for these writers, is that the law doesn’t protect such defamation. The truth is an absolute defense to libel cases. If they have evidence for those smears, then they have nothing to fear. But if they, say, recklessly invented all manners of illegal or unethical activities by me without bothering to see if they bore any basis in truth, then they’ll have plenty to worry about.
Like Sterling Newberry, Kos seems to have very little comprehension of libel law. This is quite odd; he’s an attorney. Yet, even a novice knows that “truth is an absolute defense” applies to the accuser, not the accused. Thus, if Zengerle can prove that Kos is getting payola from Jerome Armstrong, he wins a libel suit notwithstanding any harm suffered by Kos pursuant to those charges.
However, the reverse is not true; Zengerle’s inability to prove payola or Kos’ convincing a jury that he is innocent of the charges would not necessarily result in a damage award. Kos has an affirmative burden to demonstrate that Zengerle either knew the charges were false or that he acted with reckless disregard for the truth. Indeed, given that Kos almost certainly qualifies as a public figure at this point, he might well be held to a much higher standard: proving that Zengerle had malicious intent.
Furthermore, nothing Zengerle wrote is untrue. There were SEC charges against Armstrong. There was a settlement between Armstrong and the FEC. Kos and Armstrong did work for the Dean campaign for a time while writing pro-Dean things on their blogs and not disclosing such. Kos has in fact written laudatory things about Armstrong’s clients, even reversing himself to do so, even though several of them seem unlikely candidates for Kos-love. Zengerle has not written that Armstrong has given Kos money to write these things or that Kos took money. He’s merely saying the facts laid out are suspicious.
Until proven otherwise, Kos deserves to be taken at his word that there is an innocent explanation for his behavior. His political style is take-no-prisoners and very much ends justify the means. That doesn’t mean that his personal ethics are governed by that mindset. But petulant posts and hollow threats of libel charges, combined with trying to orchestrate a campaign of silence on the part of the prominent lefty blogs, isn’t helping his case any.
