[EL] damages awarded for defamatory campaign ad

[Bill Maurer]

Now you understand why I didn't go into any depth describing the holding-I did an amicus in the case and the outcome is, uh, somewhat amorphous except for Richard's point that Ms. Rickert won.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Volokh, Eugene
Sent: Monday, April 09, 2012 10:59 AM
To: law-election at UCI.edu
Subject: Re: [EL] damages awarded for defamatory campaign ad

                Is that quite so?  As I read the case, it distinguished New York Times v. Sullivan on the ground that the statute wasn't limited to libelous speech, but also included nondefamatory reckless/knowing falsehoods.

The text of RCW 42.17.530(1)(a) suggests that the legislature may have intended to limit the scope of its prohibition to the unprotected category of political defamation speech identified by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)<http://scholar.google.com/scholar_case?case=10183527771703896207&q=Rickert+v.+Public+Disclosure+Commission&hl=en&as_sdt=2,5>. However, as correctly noted by the Court of Appeals, "[U]nder New York Times, only defamatory statements . . . are not constitutionally protected speech." Rickert,129 Wash.App. at 461, 119 P.3d 379<http://scholar.google.com/scholar_case?case=12446630266481799597&q=Rickert+v.+Public+Disclosure+Commission&hl=en&as_sdt=2,5>. Because RCW 42.17.530(1)(a) does not require proof of the defamatory nature of the statements it prohibits, its reach is not limited to the very narrow category of unprotected speech identified in New York Times and its progeny. Thus, RCW 42.17.530(1)(a) extends to protected political speech and strict scrutiny must apply.

So I'm not sure that Rickert holds that a state may not specially restrict recklessly/knowingly false and defamatory statements of fact in campaigns.  And in any event, I don't see the case as barring traditional libel lawsuits for such statements.  Or am I misreading this?

                Eugene

From: Bill Maurer [mailto:wmaurer at ij.org]<mailto:[mailto:wmaurer at ij.org]>
Sent: Monday, April 09, 2012 10:34 AM
To: Volokh, Eugene; law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: RE: [EL] damages awarded for defamatory campaign ad

There was a case at the Washington Supreme Court, Rickert v. Public Disclosure Commission, 168 P.3d 826, that addressed whether the state may make it a campaign finance violation for statements that would meet the standards for a cause of action for libel or slander.

Bill

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]<mailto:[mailto:law-election-bounces at department-lists.uci.edu]> On Behalf Of Volokh, Eugene
Sent: Monday, April 09, 2012 9:23 AM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] damages awarded for defamatory campaign ad

As I mentioned, I don't think there's any First Amendment problem with awarding libel damages for recklessly or knowingly false statements of fact in an election campaign, given New York Times v. Sullivan and later cases.  But I do wonder whether the verdict in this case was supportable.  For instance, the plaintiffs apparently argued that the statements about "Bertrand's company" must have referred to the small marketing companies that Bertrand owned, while in context it appears that a reasonable viewer would have seen the ad as referring to the company that Bertrand worked for.  Under the independent appellate review standard set forth in Bose Corp. v. Consumers Union, an appellate court might well reverse the judgment, concluding that the particular statements in this case were either true or expressions of opinion.

Eugene Volokh
UCLA School of Law







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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