[EL] damages awarded for defamatory campaign ad

Mon Apr 9 09:15:22 PDT 2012

                I don't think there's any settled First Amendment protection against libel lawsuits based on recklessly or knowingly false statements of fact in election campaigns.  Such speech said with so-called "actual malice" is constitutionally unprotected against libel lawsuits, just as such speech about government officials said outside the context of an election campaign is constitutionally unprotected.  Shulman and Beilenson, I think, concluded simply that "actual malice" wasn't shown in those cases.  (Note also that Goldwater v. Ginzburg seems to be well in the heartland of such false statements - there's no constitutional difference between recklessly or knowingly false allegations of mental illness and other recklessly or knowingly false defamatory allegations.)  Or is there something I'm missing here?

                Eugene

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Goldfeder, Jerry H.
Sent: Monday, April 09, 2012 8:32 AM
To: 'Ben Sheffner'; Kieran Williams
Cc: law-election at UCI.edu
Subject: Re: [EL] damages awarded for defamatory campaign ad

In New York State, the Court of Appeals, the state's highest court, found no defamation where a candidate was discovered to have made anonymous charges.  The Court urged candidates for public office "to develop a thicker skin."  Shulman v. Hundefund, 12 N.Y.3d 143 (2009), cited in Goldfeder's Modern Election Law (Third Edition), p. 1.

Jerry H. Goldfeder
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
212-806-5857   (office)
917-680-3132   (cell)
212-806-7857   (fax)
jgoldfeder at stroock.com<mailto:jgoldfeder at stroock.com>
www.stroock.com/goldfeder<http://www.stroock.com/goldfeder>

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Ben Sheffner
Sent: Monday, April 09, 2012 11:23 AM
To: Kieran Williams
Cc: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] damages awarded for defamatory campaign ad

A 1996 California case, Beilenson v. Superior Court<http://scholar.google.com/scholar_case?case=12123497566261335798&q=beilenson+slapp&hl=en&as_sdt=2,5>, 44 Cal.App.4th 944 (1996), includes the following passage:

Sybert [the plaintiff, an unsuccessful Congressional candidate] has not cited a single case in which a candidate has recovered damages for defamatory statements arising during the course of a campaign. In the solitary case that we found, the defamatory statements went well beyond the pale of what is protected under the First Amendment. (Goldwater v. Ginzburg (2d Cir.1969) 414 F.2d 324<http://scholar.google.com/scholar_case?case=9399741338389592355&q=beilenson+slapp&hl=en&as_sdt=2,5> [a magazine knowingly and falsely printed that a presidential candidate suffered from a serious mental illness].)

The overwhelming weight of authority is that campaign rhetoric is protected speech and, as such, recovery by a candidate is highly unusual. (Monitor Patriot Co. v. Roy, supra, 401 U.S. 265 [28 L.Ed.2d 35]<http://scholar.google.com/scholar_case?case=2024767074661300700&q=beilenson+slapp&hl=en&as_sdt=2,5>; Desert Sun Publishing v. Superior Court, supra, 97 Cal. App.3d at p. 51<http://scholar.google.com/scholar_case?case=13062437310432591227&q=beilenson+slapp&hl=en&as_sdt=2,5>;Thomson Newspaper Pub., Inc. v. Coody (1995) 320 Ark. 455, 465 [896 S.W.2d 897, 903]<http://scholar.google.com/scholar_case?case=1865389065206023822&q=beilenson+slapp&hl=en&as_sdt=2,5>; Vailv. The Plain Dealer Publishing Co. (1995) 72 Ohio St.3d 279 [649 <http://scholar.google.com/scholar_case?case=17111714742602653740&q=beilenson+slapp&hl=en&as_sdt=2,5> N.E.2d 182]<http://scholar.google.com/scholar_case?case=17111714742602653740&q=beilenson+slapp&hl=en&as_sdt=2,5>; Carr v.Brasher (Tex. 1989) 776 S.W.2d 567<http://scholar.google.com/scholar_case?case=6441689462785037926&q=beilenson+slapp&hl=en&as_sdt=2,5>; Valento v. Ulrich (Minn. 1987) 402 N.W.2d 809, 813<http://scholar.google.com/scholar_case?case=275660213657205701&q=beilenson+slapp&hl=en&as_sdt=2,5>;Hein v. Lacy, supra, 228 Kan. 249 [616 P.2d 277]<http://scholar.google.com/scholar_case?case=9184067443201765287&q=beilenson+slapp&hl=en&as_sdt=2,5>; Clark v. Allen (1964) 415 Pa. 484, 488 [204 A.2d 42, 44]<http://scholar.google.com/scholar_case?case=1716366769599692137&q=beilenson+slapp&hl=en&as_sdt=2,5>.)

On Mon, Apr 9, 2012 at 7:27 AM, Kieran Williams <kierandwilliams at yahoo.com<mailto:kierandwilliams at yahoo.com>> wrote:
A jury has awarded a candidate for the Iowa State Senate $231,000 in damages for allegations made by his 2010 opponent in a 30-second attack ad; details are here<http://www.bleedingheartland.com/diary/5432/gop-state-senator-wins-defamation-case-over-2010-ad>. Note that the plaintiff who brought the suit did win the race, albeit very narrowly. Does anyone know of similar recent cases, in particular of any that did not get overturned? (I am not involved in this case in any way - I'm just interested in the boundaries of protected campaign speech.)

Kieran Williams
Drake University
Des Moines, IA  50311

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