With the recent conclusion of the Illinois primaries and statewide elections around the corner, media channels and airwaves have been a breeding ground for assaultive comments and statements between candidates. Defamation in Political Campaigns. Television viewers and radio listeners have been bombarded with an onslaught of negative attack campaign ads and political statements that barrage one candidate while heralding the next as a savior. Many people are wondering how politicians and their supporters are able to publish these ads; certainly some of the ads cannot represent the whole truth. But the question then becomes when do such statements rise to the level of actionable defamation?
What is defamation?
To put the scenario in context, it is helpful to have a basic understand of what the concept of defamation is. Defamation is the communication of a false claim or statement of fact about another person that harms that person’s reputation. The statement does not need to be made to a large group of people; you can be liable even if you make the statement to just one other person (other than the person that the statement is about). There are two types of defamation. The first is libel or written defamation, including things written on Internet websites, blogs and message boards. The second is slander or spoken defamation.
What is a “false statement of fact”?
A false statement of fact is a false statement that can be proven true or false – such as “John stole my computer from my house,” or “Mary had an affair with the boss to get her promotion” – and which a reasonable person, in the context provided, would understand as being asserted as a true and verifiable statement. Obviously, if a statement is true, it cannot be defamatory.
What about statements of personal opinion?
Opinions, even if they reflect negatively on someone, are protected by the First Amendment and are not defamatory. However, just calling a false statement of fact an opinion is not enough to gain First Amendment protection. For instance, if you say, “Based on the evidence, in my opinion, it’s clear that John stole my computer from my house,” then a court might determine that, because you were backing up your statement with evidence, that you were actually making a statement of fact. If that statement is false and hurts John’s reputation, then you could still be liable for defamation.
How is this affected by the context of a political campaign?
It is important to keep in mind that claims for defamation are usually balanced against a person’s First Amendment protection on free speech. Importantly, the First Amendment was enacted during a time where government censorship on debate and criticism of the political process were a large concern. Therefore, the First Amendment’s principal guarantee of free speech is perhaps strongest when dealing with public debate on political issues. Thus, in the context of political campaigns, public officials are often required to meet a higher standard of proof than ordinary citizens. Most courts require public officials to prove to that the defamatory statement was made with the person’s actual knowledge of its falsehood or with reckless disregard of whether it was false or not.
When does political “spinning” of statements during an election rise to the level of actionable defamation?
Most courts take the view that when a person runs for public office, he puts his character in issue so far as it relates to his fitness and qualifications for office. Accordingly, the politician’s prior conduct and actions are often fair game for comment. But campaign ads are famous for spinning the truth and such “spinning” of the facts typically walks a fine line to being false.
For example, in the recent Massachusetts race to fill the seat of the late Senator Edward Kennedy, the Massachusetts Democratic Party sent a mailing letter out in opposition to the then Republic Candidate, Scott Brown. The ad stated “1,736 women were raped in Massachusetts in 2008. Scott Brown wants hospitals to turn them all away.” Did Scott Brown ever tell hospitals to turn raped women away? Probably not, but a reader of the four-page mailer might have taken the statement as a fact. In actuality, the ad was referring to an amendment that now U.S. Senator Scott Brown voted in favor of when he was in the Massachusetts Senate. The failed amendment would have allowed highly religious workers at hospitals to avoid providing contraception to rape victims. Is the statement defamatory?
The first consideration is whether the statement is objectively verifiable as false. This statement clearly walks a fine line. On one hand, Sen. Brown did vote in favor of a bill that may allow hospital workers to refuse to provide contraception to rape victims. However, did this bill affect “all” of the 1,736 women as claimed by the ad? The answer is no. To further make the situation difficult, the ad’s language “Brown wants” may be seen as referring to Sen. Brown’s state of mind. Recall that the public official is required to prove knowledge or reckless disregard for the truthfulness of the statement. Therefore, even if the ad is viewed as a false statement a fact, the politician would still have to overcome these hurdles at trial.
Ok, so a statement is a “false statement of fact,” what other legal challenges does a public official face?
In addition to the heighted knowledge requirement for statements made against public officials, the politician is hard pressed to fit political statements under the basic defamation framework. Statements made during political campaign receive the best chance of falling into one or more of the five categories of statements considered defamatory per se. Defamatory per se statements are those from which it is clear from the statement itself that it is defamatory. The per se categories most likely to encompass political attack ads are the categories for words that imply an inability to perform duties of office or employment, or statements implying a lack of ability in the person’s trade, profession or business. However, even these categories present unique challenges to a politician claiming that he has been defamed by a political statement. Political defamation cases often require courts to determine whether a political campaign can be considered the politician’s “profession” or “business.” Court positions can vary widely on this topic from state to state and it is important to consult an attorney for state specific advice.
If political defamation lawsuits are so hard to prove, why bring them?
It is important to keep in mind that there is no typical defamation case. The statements involved and the ability to prove their veracity will necessarily vary. In some cases, conduct may be so outrageous, that it may be relatively easier to recover damages. On the other hand, there may be a strategic element involved to a political defamation case. Defamation suits can be used to scare various media sources from originally publishing ads or may prevent further dissemination of attack ads. Defamation law suits may even be used as a way to publicly challenge the offensive allegations in a campaign ad. At the end of the day, when the public official’s image is on the line, filing suit may be a strategic victory.
If you have further questions about defamation law, as it applies to political campaigns or public figures, feel free to contact our offices: 312.527.4100.