February 16, 2012
In fact, with the 2012 Republican presidential primaries being one of the more competitive in recent history, many of you have probably already had your fill of political ads, especially if you live in a state with one of the earlier primaries.
A good number of these and all other political advocacy messages are “attack ads,” which focus less on taking stances on policy and more on attacking opposing candidates.
Attack ads aren’t always completely accurate and forthright, and often twist the words of candidates to invite the viewer or listener to draw incorrect inferences.
Many lawyers, upon seeing these, may wonder if such ads cross the line into defamatory territory.
Jim Schatz, a Democratic politician who lost his bid for a Maine Senate seat in 2010, believes that at least one attack ad against him was defamatory, and brought suit against the organizations responsible for the ad in late 2010.
Here is the ad in question, a pamphlet distributed by the Republican State Leadership Committee (RSLC):
Schatz asserted that the pamphlet contained many falsities.
First, Schatz stated that he had not actually voted to cancel the $10,000 fireworks celebration as a selectman for the town of Blue Hill.
Instead, Schatz alleged that he himself had voted in March 2009 to fund fireworks for that day but was outvoted by the town’s other two selectmen.
Second, there was actually nothing wrong (i.e. illegal) about directing funds to a political organization.
Moreover, it was the town’s voters, instead of Schatz, who made the decision to direct the funds for political purposes.
Lastly, Schatz claims that by juxtapositioning the two stories, the pamphlet made it seem as though Schatz spent all of the taxpayers’ funds for his own political purposes instead of using the $10,000 to fund the town’s Fourth of July fireworks display.
And this, along with the two assertions of the pamphlet mentioned earlier, is false.
If the pamphlet so clearly contained such egregious misstatements, why did Schatz lose at the trial court level, and subsequently on appeal just last week?
In short, because Supreme Court precedent on this issue creates a pretty wide berth for political speakers such as the RSLC.
Normally, the elements for the tort of defamation are:
- A false and defamatory statement concerning another;
- an unprivileged publication to a third party;
- fault amounting at least to negligence on the part of the publisher; and
- special harm caused by the publication (except with defamation per se).
Unfortunately for Schatz, these elements aren’t the same for a public figure.
In such circumstances, instead of the publisher being at least negligent, the publisher must have “actual malice,” which essentially means that the publisher acted “intentionally” (knows that the statement is false) or “recklessly” (a “high degree of awareness of probable falseness”).
Against this legal backdrop, both the trial court and appeals court found that, while the statements were indeed false, Schatz didn’t show actual malice on the part of the RSLC, and thus dismissed his claim.
The court’s opinion is perfectly in line with established precedent, but that doesn’t mean that it isn’t a bit unsettling, at least to those of us that are tired of false attack ads.
True, First Amendment protections must be upheld in regards to political speech – the justification for allowing the negligent publication of false statements.
Nevertheless, there surely must be a better way to approach such protections, since the current jurisprudence encourages political speakers to investigate as little as possible into a given source’s veracity.
Until such a method is determined, the lesson to take away from this is simply that it’s safer to assume that all political attack ads are false.