Democratic Congressman and decorated Vietnam vet John Murtha is defending a defamation action brought against him by one Staff Sgt. Frank Wuterich, based on Murtha's assertion that Marines in Iraq engaged in "cold-blooded murder and war crimes" with respect to certain civilian deaths in Haditha.
Specifically, Murtha is resisting an order to give a deposition in the case, against which Murtha is asserting immunity to suit "because he was acting in his official role as a lawmaker when he made the comments to reporters." This is something that is, obviously, rarely going to come up in a defamation action. One precedent is in former Senator William Proxmire's failed defense against a 1979 suit brought by a professor in response to Proxmire "awarding" the professer a "Golden Fleece" award, predicated on the professor's supposedly useless government-funded research. Proxmire tried to shield himself with a provision in the Constitution called the "Speech and Debate clause," which says that members of Congress:
...shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same, and for any Speech or Debate in either House, they shall not be questioned in any other Place.
In other words, no Congressman can be held liable for what they say in Congress. The Supreme Court held in that case, Hutchinson v. Proxmire, 443 U.S. 111 (1979), that the clause does not cover press releases or interviews outside of Congress, so Murtha may be out of luck there.
Still, one thing the Proxmire case doesn't tell us is what happened after the Supreme Court sent it back to the lower courts for adjudication. I suspect Proxmire's Supreme Court win turned out to be the pinnacle of his success in that litigation. In Murtha's case, if the privilege does apply, the plaintiff must still demonstrate that Murtha's comments could be seen as reflecting on him individually - and Murtha will have to decide whether to take the political risk of asserting truth as a defense.
There are a few reasons why political candidates rarely sue over over-the top accusations amidst the fiery rhetoric often brought up in campaigns. For one thing, it is exceedingly hard for a "public figure" to win such a claim, because the First Amendment creates a higher standard for assertions that touch upon matters of public interest. For another, it usually doesn't play well politically. However, perhaps the modern rarity of politicians suing other politicians over alleged slanders is exactly the thing that might make this politically feasible. The filing of the lawsuit, in essence, declares this to be beyond the bounds of decent politics. And if the plaintiff wins and receives a judgment, it may well result in a reduction of extremism in negative political advertising.
Sinclair's video
Plenty of flatly absurd allegations were spread around the blogosphere during the presidential election. However, by far the best example of a claim for which no First Amendment protection would apply against a potential defamation suit is that made by a person named Larry Sinclair, who claimed that he did cocaine and engaged in a gay sex act with Senator Obama:
If Mr. Sinclair can not prove the truth of this allegation, then a court could find this to be a knowingly false statement, and one unquestionably designed to damage Senator Obama's reputation and bring public disdain upon him. Of course, Senator Obama has no reason to bring attention to this sort of thing, and certainly he has more important things to do than press a lawsuit (or fifty, since Mr. Sinclair could be sued separately in every state where his assertion was broadcast). But if I were the subject of this sort of allegations, I would not hesitate to file a defamation suit.
Elizabeth Dole's "Godless" advertisement.
Here is an actual case of a politician suing another for defamation in a high profile Senate race.
In the North Carolina Senate race, challenger Kay Hagan filed a lawsuit against the campaign of Senator Elizabeth Dole over an ad which Hagan - a Sunday school teacher and Presbyterian church elder - characterized as "an attack on my Christian faith."
The 30-second spot at the heart of the suit claimed that Hagan was the subject of a "secret fundraiser" by one "Godless Americans Political Action Committee." According to CNN:
The ad then shows members of the group, which promotes rights for atheists and the separation of church and state, declaring that neither God nor Jesus exists. "Godless Americans and Kay Hagan," the ad continues. "She hid from cameras. Took 'Godless' money. What did Kay Hagan promise in return?" The ad ends with a picture of Hagan and a voice that sounds like hers declaring, "There is no God."
The heart of the claim, from my view, is not really whether Hagan attended a secret meeting, but whether the ad would lead a reasonable viewer to believe that it was Hagan quoted as saying "There is no God." A few weeks ago I blogged about a woman in Florida who sued Jews for Jesus for intimating that she had converted into their beliefs, and noted that the Florida Supreme Court had found the disrepute she might suffer among her own minority group to be enough to sustain a claim.
I will not venture to say whether accusing someone of atheism might generally be thought of as something that brings the speaker into ill repute - but there is no question that there is at least a substantial portion of the population who would think that the voice in the ad was Hagan, and for whom it would bring that negative response.
Al Franken's "Fishing Buddies" ad
In Minnesota, the incumbent Norm Coleman has filed a defamation suit against challenger Al Franken over an ad which "claimed Coleman was a stooge of oil interests":
This one presents a much harder case to prove than the Dole case. If Franken can show that Coleman did in fact receive money from the people or entities discussed in the ad, the remaining accusations become a matter of opinion.
California Mormons attacking a gay couple
Finally, there is the controversial anti-Proposition 8 ad in California showing a pair of Mormons stripping rights from a gay couple:
Although this has raised controversy and condemnation from some quarters, I have blogged before on the absence of a "group defamation" claim in the United States. Since Mormons are a fairly large group, no individual Mormon would have standing to assert that the ad was about them in particular, which is probably why no defamation suit has resulted from this ad.
Despite any arguments to the contrary, I strongly believe that the law of defamation should be considered part and parcel of the intellectual property regime, as it protects rights to the intangible characteristics of reputation and public image.
