The latest column by the Times-Picayune’s resident “conservative” columnist, Tim Morris, muses on whether Sen. John Kennedy is setting himself up as a credible candidate for Louisiana governor in 2019 with recently pointed attacks on celebrities.
You’ll recall that Kennedy’s Republican compatriot in the Senate, Sen. Bill Cassidy, notably caused a fracas with late night talk show host Jimmy Kimmel that damaged his credibility. Morris figures that Kennedy, by contrast, is playing a smarter game and coming out ahead:
It began with a Senate committee questioning the former head of Equifax, which was the victim of a hack that exposed the personal information of more than 145 million Americans. It also turns out that the company has a no-bid $7.3 million contract to provide taxpayer and personal identity verification services for the federal government. Not even Sen. Kennedy can make up some of this stuff, but he sure knows how to hit them when they are teed up.
“You realize to many Americans right now,” he told the committee, “that looks like we’re giving Lindsay Lohan the keys to the minibar.”
Kennedy’s reference was to the actress’ well-documented addiction and rehab history. Her parents, Dina and Michael Lohan, told the website Gossip Cop that the couple is urging their daughter to take action.
“While Dina and I realize we can’t sue Senator Kennedy for his bullying statements, Lindsay can,” Michael Lohan said. “I advised her to seek counsel through a friend who is a well-known federal attorney in New Orleans. This has got to stop. Lindsay has turned her life around and does wonderful humanitarian work.”
Lindsay Lohan responded with a tweet suggesting she remains clean and sober and is considering her legal options.
For Kennedy, it was just another day at the office.
The Lohan reference was similar to Kennedy’s shot at Jimmy Kimmel when the late-night talk show host was attacking fellow Louisiana Sen. Bill Cassidy’s health care proposal. Kennedy allowed that Kimmel was a “funny guy,” but no one should confuse him with a “well-respected health care expert.”
“I wouldn’t take advice from Charlie Sheen either,” Kennedy added, dropping the name of another Hollywood performer with a drug and rehab history even more colorful than Lohan’s.
Kimmel responded with an admittedly less clever retort that Kennedy must be “inbred.”
Of course, any lawsuit against Kennedy by Lohan would be entirely frivolous. Kennedy knows that. He’s an attorney with a prestigious pedigree, having graduated in the order of the coif from the University of Virginia Law School and practiced at Chaffe McCall, a top litigation firm. You might not know it from his folksy persona, but he’s a keen legal mind.
You see, Kennedy knows where the line is and he didn’t come near it. The tort of defamation requires an untrue statement, not merely an offhand quip. Joking about the foibles of others, provided it has a factual basis, is constitutionally-protected. Furthermore, defamation provides limited relief for public figures like Lohan. She would have to show actual malice, i.e., that Kennedy actually intended to harm her, which he clearly did not.
Furthermore, defamation doesn’t protect those who are essentially non-defamable. Lohan’s reputation is essentially ruined at this point. Kennedy’s joke did not affect her dogged reputation for intemperance. Lohan also continues to damage her reputation further by, for example, defending admitted sexual predator Harvey Weinstein.
This is perhaps a large part of why Kennedy’s strategy is working; the Weinstein controversy has revealed the rot that lays inside the entertainment industry, an industry where people like Kimmel routinely delve into politics with great pomposity and assumed moral authority. Kennedy’s Republican base would like nothing more than to see liberal celebrities needled back and forced to wallow in their own hypocrisy.
Cassidy’s big mistake was to try and initiate a fair and rational discussion with a politically-minded celebrity. Kennedy, conversely, has astutely met celebrities on their own level — throwing out strategic zingers and trying to get a reaction. It’s ugly, but it works.
Whether that astuteness makes Kennedy a prime choice for governor remains to be seen.
Owen M. Courrèges is an attorney living in New Orleans. He has previously written for Uptown Messenger, the Reason Public Policy Foundation, and The Lone Star Times.