2008 post-election defamation report.

2008 post-election defamation report.


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.

Group defamation (of 1/5 of the world)

As I make the final preparations for an immanent trip to the People's Republic of China, I found by appropriate coincidence that a case has been filed which fits the theme of both my blog and my trip. One of the reasons for my travels is to get a sense of the state of intellectual property law being practiced in China (which, for my view, includes the state of defamation law). And here we have a suit being filed on behalf of China, CNN now sued for $1.3 billion - $1 per person in China.

The suit, in which the plaintiffs are a Chinese primary school teacher and a beautician, has been filed in New York (the story says the plaintiffs “filed a suit against CNN in New York” which I take to mean that the suit was filed in New York, and not simply against CNN’s New York bureau). The defamation alleged is that CNN commentator Jack Cafferty said that goods imported into the U.S. from China has included "junk with the lead paint on them and the poisoned pet food" and that the Chinese are "basically the same bunch of goons and thugs they've been for the last 50 years."

The New York plaintiffs are not alone in their outrage. The article relates that another suit has been filed in Beijing by lawyers incensed about the same remarks. The New York suit, I predict, will face a swift dismissal, because United States law rejects the concept of “group defamation.” An essential element of a defamation claim is that the defamatory comments must be "of or concerning" the plaintiff. The larger the group alleged to be defamed, the thinking goes, the less likely any particular individual will ascribe the defamatory commentary to the specific individual bringing the suit. Since the plaintiffs in this case sue on behalf of 1.3 billion people, this may well be the largest group on whose behalf such a suit has ever been brought (unless someone has, in recent history, brought a suit alleging defamation of all men or all women).

The defamatory comments alleged here, however, would seem to go more specifically against exporters of goods made in China, and the Chinese government, respectively. Thus, it would be very difficult to impute the defamation to be referring to a school teacher and a beautician who bear no responsibility in the governance of China and play no apparent role in the importation of goods therefrom.

The suit brought in China may have a different outcome, not merely because of possible home-court bias, but because the law differs from country to country. Throughout most of the world, defamation of a group is prohibited and may be remedied. It is therefore more likely than not that a remedy is available under Chinese law if Cafferty’s comments are found to be defamatory.

There has been scholarly discussion of whether group defamation should be a permissible cause of action in the United States, and commentators have suggested that the continued repetition of false accusations against a particular group, taken as a whole, can have the effect of causing non-members of the group to change their behavior towards even the most innocent member of the group (see, e.g. Racial and Ethnic Group Defamation: A Speech-Friendly Proposal by Professor Michael J. Polelle of the John Marshall Law School. This is certainly food for thought in light of historical situations in which groups such as Jews, and Muslims, Hispanics and Native Americans, and numerous other ethnic and religious denominations have been the subject of campaigns sponsored by governments and other powerful interests aimed at denigrating all members of the group.

All images used in this blog are from the Wikimedia Commons.