What your view of sports and life would be if you had too many concussions
If this is your first visit to Dubsism, you don’t know that I have historically been less than complimentary to Peyton Manning. The reasons why are numerous. Search “Peyton Manning” on this blog for the details if you’re curious; they will just get in the way here. But that raises the proverbial “million dollar question:” If I’m such a Manning detractor, why would I bother to defend him?
In case you live under a rock in a cave on the dark side of the moon which only gets service from Comcast, this week Manning’s name surfaced in a lawsuit filed against the University of Tennessee. The mention involved allegations of “sexual assault” against the former Volunteer quarterback. Since then, the social media train hurtled out of the station, and collided with the ever-present “court of public opinion.”
That makes the answer to the original question rather simple. I’m the public defender in the “court of public opinion,” and I’m here to clean up the train wrecks created by people too willing to listen to lies. One crucial fact the “court of public opinion” always forgets is this is America in the 21st Century, not Germany in the 1930’s. America is supposed to be a land where due process and the proper exercise of jurisprudence rule the day; and in the places that matter, they still do. But America also has two problems which make it easy to forget that.
The first is that social media has made it incredibly easy for the nobodies in America to have a voice. People will rile at my saying that, but it’s true. If as an individual you are unlearned, unread, and unenlightened, your opinion doesn’t matter. However, we’ve made the mistake in America of believing that one sheep bleat is irrelevant…unless it gets re-Tweeted a million times. Without real action to support it, all it did was identify a million other sheep.
The second problem is far more egregious. In America, we’ve confused bomb-throwers who can get those million re-bleats with “journalists.” That means stories in the main-stream media now often have little to do with fact, and more to do with what I call the “Re-Bleat Factor.”
In the case of Peyton Manning, this begins with a sloppily-written piece in the New York Daily News which quotes the aforementioned lawsuit against the University of Tennessee. It is important to note that suit has nothing to do with Manning; rather it is about Title IX violations alleged to have been committed by the university, and the mention of the allegation against Manning are all about putting a famous face to a lawsuit nobody would care about otherwise, and to establish a “pattern” of hostile and abusive behavior perpetrated by the university against women.
To summarize the accusation against Manning, a Sports Illustrated article states the following:
…Manning “forcefully maneuvered his naked testicles and rectum directly” onto the face of Dr. Jamie Naughright, the University of Tennessee’s director of health and wellness, in 1996 and then “smirked” and “laughed” about it. At the time, Manning was the 19-year-old star quarterback for the Volunteers. Naughright was 27 years-old and examining Manning for a possible foot injury. Manning initially denied the incident took place but later acknowledged that a possibly “crude” but nonetheless “harmless” event occurred. Associate team trainer Mike Rollo believed that any contact between Manning and Naughright was accidental since Manning was mooning another student-athlete (Malcolm Saxon) right as Naughright moved her head. Yet Saxon—the alleged “mooned” player—later signed a sworn affidavit saying he was never mooned.
Salacious for sure, but it also makes a perfect lead-in for a trash-job rooted in nothing but “internet lawyerism” which the New York Daily News should be ashamed for publishing. This was little more than a shoddy attempt to summarize a 74-page document filed by Manning’s accuser Jamie Naughright. As a perfect example as a piece written to illicit a high “Re-Bleat Factor,”’ it is exceptionally devoid of balance, and is chock full of flaws ranging from factual inaccuracies to outright and seemingly intentional blurring of distinctions between fact and opinion.
Apparently, I’m not the only person who took exception to this piece, because two days after it was published, the original author was criticized to the point where he felt is necessary to publish a follow-up defending himself by attacking the generally held observation of the original piece being an unbalanced trash-job. The following quote sets the stage for my defense of Manning.
In the wake of this release, countless pundits and platforms have repeatedly made one key error – they have erroneously reported that the document we released was “one-sided” or was just “one woman’s thoughts” on the case. This is not only an egregious misrepresentation of what we released, it causes me to sincerely question the motives of anyone who says such a thing.
Since what we released on Saturday did include my own narrative summary and thoughts of the document, today I’d like for us to simply drill down to the facts.
So, let’s do just that…
1) The Obvious and Hypocritical Contradiction
The author admits the original piece is laden with his own “narrative summary and thoughts,” yet he impugns the opinions of his critics. Sorry, but what’s good for the goose is good for the slander. The author also claims in his follow-up piece “to drill down to the facts.”
But before we take a long and mostly pointless stroll down the author’s listing of what he calls “facts,” let’s take a look at his fundamental misunderstanding of the law. That’s best done by examining a passage from that list. The best way to make that illustration is to examine the chronology of the legal relationship between Manning and his accuser, so we’ll come back to the author’s so-called “facts” in a bit.
2) How We Got Here
This is more from the previously linked Sports Illustrated article:
…the incident had an aftermath at the University of Tennessee, although one largely out of public view. Several hours after believing that she had been assaulted by Manning, Naughright filed a report with the Sexual Assault Crisis Center in Knoxville, Tenn. According to Naughright, university officials seemed intent on downplaying the incident and protecting Manning, arguably the best and most celebrated player in Tennessee’s history. In fact, she claims one university official asked her to blame whatever transpired on an African-American athlete and she refused.
Naughright also asserts that Manning would thereafter harass and mock her around campus and in front of her coworkers and Manning’s teammates. Naughright eventually left the school as part of a financial settlement, and reportedly she and Manning signed a non-disclosure agreement to not discuss the alleged incident. Florida Southern College hired her as a professor and program director.
The 1996 incident was not the only one between Manning and Naughright. In 1994, Naughright says an incident occurred that “explains the genesis of Peyton Manning’s dislike” of her. Naughright, however, agreed to keep the 1994 incident confidential, though only as a “courtesy” to Manning. It stands to reason that she could eventually retell what occurred.
Even though Manning and Naughright had moved on from the University of Tennessee and signed a mutual non-disclosure agreement, Manning would write about the 1996 incident in Manning: A Father, His Sons, and a Football Legacy, a book he co-authored with his father, Archie Manning, and a ghostwriter, John Underwood (a former Sports Illustrated writer who had left the magazine by the time the book was written). Naughright testified that portions of the book were mailed to her office in 2001 and addressed to “Dr. Vulgar Mouth Whited”—in an apparent attempt to harass and discredit Naughright (whose last name was Whited for much of her time at Tennessee), and to embarrass her among her academic colleagues. In the book, Peyton Manning describes a training room incident as “crude maybe, but harmless” and, though not by name, he portrays Naughright in a disparaging light. In particular, Manning describes Naughright as “vulgar.”
Naughright filed a defamation lawsuit against Manning and Underwood. Prior to the parties reaching an out-of-court settlement, Manning gave damaging testimony. He described Naughright as habitually vulgar and particularly profane during a 1995 trip to Charlottesville, Va. Manning’s testimony appears contradicted by other witnesses, which raises the possibility Manning may have exaggerated or lied about Naughright. Moreover, testimony by Peyton Manning and Archie Manning revealed that the son told his father that Naughright “was unattractive but had big breasts” and that she liked to hang out “with a bunch of black guys.”
Now, one can read that excerpt and draw any conclusion they wish. But there’s only one which follows documented facts. Keep reading; we’re getting there.
3) The So-Called “Facts”
This is just a straight-up listing of the facts the author cites. They are little more than an exercise in deflection and in “true but irrelevant.”
When Peyton and Archie Manning spoke about Dr. Jamie Naughright in their book, “The Mannings,” they violated an agreement that was in place with the University of Tennessee not to speak about her or the incidents involving her at the university.
True, but entirely irrelevant. Most civil settlements include “non-disclosure” agreements, but the second lawsuit filed against the Mannings by Naughright wasn’t about non-disclosure, it was about defamation. In other words, it was not about something being said at all, rather it was about what was said. That’s a serious distinction.
Dr. Jamie Naughright sued Peyton Manning, Archie Manning, their ghostwriter, and the publisher of the book, Harper-Collins, for defaming her character – which she said cost her a brand new job that she had landed at Florida Southern.
True, but again largely irrelevant to the idea this is about an alleged sexual assault. Not to mention, anything that came of this lawsuit is of little consequence since it never saw a jury, and once again the facts are not a matter of public record.
Peyton Manning filed a motion to have her lawsuit thrown out.
True and relevant, but the idea here is than Manning wasn’t supposed to defend himself.. Even all you Tom Brady-o-philes who have a built-in disdain of “Fetushead” Manning now understand the value of fighting back. Don’t stop reading now because this is about to get even more pathetic. The author goes on to list a dozen more facts, all of which are fashioned to make the fact these lawsuits were settled appear as an admission of guilt on the part of the Mannings.
Except that’s not the way settlements work. Entering into a settlement is not like copping a plea in a criminal proceeding; in the criminal world, you have to allocute to the details of the crime for the record. In a civil proceeding, no such claim of guilt or innocence is needed. One reason for that is once a settlement is reached out of court, it’s no longer necessarily a matter of public record. That’s why the author can cite all the affidavits and testimony he wants because they are of no legal significance.
Speaking of which, in all of this I have yet to see why no criminal charge was ever filed. Sticking your ass in somebody’s face who doesn’t want it there merits a ride downtown to get your picture taken. Could it be that filing a false police report is also a crime, but filing a dubious lawsuit is not? Because the records are under a “non-disclosure” agreement, we’ll never know the answer to this question: Who was the first to make an offer for a settlement?
I’ll bet you I know…
4) The Twisting of Reality and the Law
This entry in the so-called list of facts is the most damning, and for many reasons.
Polk County Circuit Judge Harvey A. Kornstein not only denied the motion from the Manning family but blasted Peyton Manning, his father, and the others, ruling a jury could find there was “clear and convincing evidence” the Mannings lied.
This is where we come back to the “obvious and hypocritical contradiction,” and where we take a hard look at the aforementioned passage from the author’s so-called list of facts. The following is the author’s quoting of a decision by Judge Harvey A. Kornstein in which he denied a motion by Peyton and Archie Manning to dismiss the defamation lawsuit filed by Naughright.
“Even if the plaintiff is a public figure, the evidence of record contains sufficient evidence to satisfy the court that a genuine issue of material fact exists that would allow a jury to find, by clear and convincing evidence, the existence of actual malice of the part of the defendants. Specifically, there is evidence of record, substantial enough to suggest that the defendants knew that the passages [from the book Manning] in question were false, or acted in reckless disregard of their falsity. There is evidence of record to suggest that there were obvious reasons to doubt the veracity of Peyton Manning’s account of the incident in question. The court further finds that there is sufficient evidence to permit the conclusion that the defendants entertained serious doubts as to the truth of the passages in this case.”
Here’s where the author put on his “Internet Lawyer” hat and came to the erroneous conclusion the judge was to find “clear and convincing evidence” of malice on the part of the Mannings; “malice” being a key component is proving a defamation claim. He flat-out says it himself.
“Judge Harvey Kornstein did not arrive at his conclusion that ‘clear and convincing’ evidence of malice existed because one woman said it did, but because overwhelming evidence proved such a thing.”
I’m not a lawyer, nor do I play one on TV; but I have several attorneys as friends and business associates. When I gave a dozen of them Judge Kornstein’s decision and asked for their opinion, every single one of them said the author’s interpretation wasn’t just wrong; it was blatantly wrong. When I asked for a “Legalese-to-English” translation, what I was told (paraphrasing) was all this meant was the judge felt there was enough evidence for a jury of reasonable people to find that the Mannings acted with malice toward Naughright.
That’s nowhere near what the author said; he accuses the Mannings of being liars. The judge said nothing of the sort, and yet this guy is claiming that as fact. If the author’s supposition is that such a finding precludes a favorable jury verdict for any plaintiff, he’s got a lot to learn about law according to the lawyers I asked. Ask them and they’ll tell you…predicting what a jury will do is like telling somebody what the weather will be six months from now.
Here’s why that distinction matters. Had the judge found that Mannings definitely acted with malice and that no reasonable jury could have found otherwise, he would have entered a “summary judgment;” meaning the evidence was so “clear and convincing” there was absolutely no reasonable doubt malice existed. That didn’t happen.
5) The “Witch Hunt”
The author claims this isn’t a “witch hunt,” but what else do you call a campaign launched with dubious facts or outright falsehoods against somebody who isn’t even the target of the legal action which brought all this two-decades old stuff to the surface in the first place?
What other rationale explains somebody having no legal background offering a pointed conclusion on a judge’s ruling which levels a felony-level accusation? Don’t forget the author said a judge found “clear and convincing evidence the Mannings lied.” That’s called perjury and can get you locked up.
Remember that whole thing about “malice?” Remember how “malice” is an essential part of defamation? Don’t you think deliberately twisting the precise language of a legal ruling in order to falsely accuse somebody of a felony constitutes “defamation?”
If that’s not a “witch hunt,” what is?
You’ll notice I’ve gone out of my way not to mention the author’s name. There’s no way I’m giving this guy any more publicity; I’m only linking to his stuff for citing and evidentiary purposes. He doesn’t need, nor is he going to get my help in upping his “Re-Bleat Factor.” I simply refuse to reward sloppy and irresponsible “journalism.”
Instead, I will defend those attacked by it. Regardless of what I think about Peyton Manning the football player, nobody deserves to have their name dragged through the mud like what is happening in this case. Did he really do what his accuser says? We’ll never really know, because those records are under non-disclosure agreements. Those of you who would attack me with the “blame the victim” bilge when it comes to sexual assault allegations might want to consider it requires the consent of the “victim” to have such an agreement in the first place.
Whether you want to admit it or not, the reason why due process exists is because not all accusers are honest. That’s why I will never forget the McMartin Pre-School case. This was the longest and most costly criminal trial in American history, and it is also the ultimate example of a modern “witch hunt.” Take equal parts rushing to judgement, twisting of established evidentiary procedures, and sprinkle liberally with pseudo-facts and mass hysteria, and voilà… the perfect recipe for a “witch hunt.”
Be it McMartin or Manning, there’s simply no excuse for manipulating the truth. The author’s continued insistence Judge Kornstein found “clear and convincing evidence” of malice is not only such a deliberate manipulation, but it was done in order to support the author’s original factually imprecise piece. In other words, he’s wrong, he knows he’s wrong, and because he’s predetermined to get a “pound of flesh,” he concocts this myth.
That’s not even the worst part. That comes when this guy not only creates a lie, then tries to play the “high moral ground” card by saying that anyone who would question his work or his motives should have their own work or motives questioned. That’s code for the aforementioned “blame the victim” defense. In other words, according to the author, all allegations of sexual assault are to be believed prima facie; to raise even the semblance of a question is “blaming the victim.” Likewise, anybody who might question the author’s motives is some sort of knuckle-dragging troglodyte who believes women exist only to be abused by star football players.
The sort of twisted questioning of my motives actually makes me want to do likewise about the author. I won’t because questioning the motives of a charlatan is a fool’s errand. Rather, in this case my response to any questioning of my motive fits into a single word: McMartin.
That case spanned a decade, cost nearly $100 million in taxpayer money, and destroyed the lives of countless people, all because of a gross perversion of due process. Because Naughright and the Mannings chose to settle their case, no one will ever know what actually happened because now the facts will never be a matter of public record. However, the author chose to ignore that; rather he builds a narrative which might as well have come from Naughright’s lawyer.
My defense of Peyton Manning won’t get the re-tweets the accusatory article did, because mine isn’t sensational, it doesn’t deviate from reality, and some may label it “politically incorrect” because it doesn’t fit their pre-conceived narrative. Label me how ever you will; I’m never going to be bullied into believing there’s no distinction between allegation and proven fact. The author is telling me that if I don’t accept his allegations as fact, then I’m somehow a bad person. The problem is anybody can file a lawsuit for just about anything in America, which inherently means allegations in any lawsuit suit simply cannot be accepted as fact until being vetted as such. That what juries are for. When testimony, affidavits, and the like never see a jury, the very real possibility exists they may not be factual.
Rushing to circumvent that process simply to avoid admitting being wrong, even to the detriment of the lives of possibly innocent people is simply not American, and can lead to evils far worse than the “rush to judgement” can purport to be eliminating.
Once all that is considered, there’s only one question remaining: Who really is the bad guy in this case?