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Politics and the law of defamation

Anecdotal studies of campaign financing and advertising practices across America suggest the reality of what we have long suspected: In many campaigns, more money is spent, not on promoting the qualities and positions of particular candidates, but rather on attacking and defaming their opponents. Hate and fear are great motivators at the polls, and 2012 promises to be a record year — in dollar volume and in defamation.The favored mechanisms for such practices are the ostensibly nonpartisan advocacy or special interest groups, all too frequently floated as tax-exempt organizations which are supposed to “promote social welfare” (in the language of the tax code). The well-heeled contributors to such entities not only pursue their own self-interest, but they also benefit from whopping “charitable” tax deductions, which are financed in part by us taxpayers irrespective of how we stand on the issues or the candidates. These entities may be issue-oriented, but charitable they are not. The invention of the so-called “Super Pac,” once favored by both Republicans and Democrats, has resulted in exactly the reverse of the originally intended outcome. It allows wealthy, but anonymous, donors, to give enormous sums of money to pay for attack ads against opponents of their preferred candidate, without the candidate having to stand up and say, “Yes, I approve this message.” The Super Pac is supposed to be completely separate from the candidate’s campaign, although in practice this is largely a myth. Since the Super Pac ads cannot mention their candidate, but only their opponents, the effect is for these ads to become increasingly hostile and defamatory. The “Super Pacs” have not made the political discourse better, but only worse.Nowhere is this more evident than in the current Republican Primary debates for the U.S. presidency. To date, fully 25 percent of all contributions to Super Pacs have been provided by only five super wealthy donors, and 100 percent of those funds have been spent on attack ads between Republican candidates. Although some of the allegations may be true, most of the charges are either outright falsehoods or intentionally deceptive misstatements or misinterpretations of the opposition’s positions, voting record or personal characteristics. The coming general elections of 2012 promise to be even worse, between Republicans and Democrats, with scant respect for truth or reputation. The now infamous Citizens United case opened the floodgates of virtually unlimited corporate donations directly for or against (mostly against) specific candidates, and/or via advocacy groups, Super Pacs and fake charities established to pursue special interests, anonymously, and with the carrot of wholesale tax avoidance. More corporate money will doubtless be spent in 2012 in this way than in any prior election in U.S. history. What we see is that year by year the mediatic political discourse becomes increasingly vitriolic, violent and defamatory. Hundreds of millions of dollars are being squandered on misinforming the public and slandering our elected officials and candidates for office, to the point where the general public begins to lose faith in democratic government. Perhaps that is what some interested parties want: a docile electorate. The defamed candidate or public official has insufficient recourse under existing law. Although remedies for private libel and slander have existed for hundreds of years as an established exception to the concept of protected free speech under both common and civil law, there has been an exception to the exception when it comes to public officials and public figures. In deference to the need for robust debate on public issues, courts have held that public officials and candidates can recover for defamation only if they can demonstrate not only untruth, but also “actual malice” in the mind of the perpetrator, which as you can well imagine is notoriously difficult to prove.Some more enlightened courts have re-defined or interpreted “actual malice” to mean that a public official must establish “by clear and convincing proof” that the defendant perpetrator had “knowledge of, or recklessly disregarded, the falsity of the defamatory statement.” Furthermore, courts may draw a distinction between “fact” and “opinion” — a matter of particular concern to journalists. For example, the statement that “President Obama lacks leadership capability” is a statement of opinion. In contrast, the statement that “Barack Obama was born in Kenya, outside the United States,” raises an issue of fact. “Actual malice” is implicit in the reckless disregard for the truth.The practical problem for the impugned official or candidate is that the wheels of court justice turn too slowly to be useful. It takes months, sometimes years, to review a claim of defamation. Courts have too much else on the docket. Meanwhile, the aggrieved candidate has either been elected or not. The damage is done. Later monetary compensation is of little consolation.The “Swiftboating” of presidential candidate John Kerry in 2004 is an example. What good would it have done to sue? Since then, the officers who accepted money to bear false witness against Kerry have been reprimanded by and retired from the U.S. Navy. But meanwhile, Kerry lost the election.Is there a solution to all this? Yes. Each state needs to create an independent tribunal to promptly review allegations of defamation of public officials and candidates. Both sides would be heard. The tribunal would immediately rule on the facts and the applicable law. In case of a finding of defamation, the tribunal could order immediate withdrawal and repudiation of an attack ad or or other libelous publication or slanderous statement, with time and space of retraction at least equal to that of the original defamation.In more serious cases, the tribunal could call for imposition of fines and/or prison sentences, but these outcomes would be reviewable under habeas corpus by appeal to the courts of law. On the other hand, in cases where accusations of criminal behavior or seriously unethical performance on the part of the plaintiff have been found to be true, the accused may be referred for judicial trial or impeachment.With this approach three advantages would follow: 1. Rapid resolution of defamation disputes; 2. discouragement of expenditures on attack ads and other defamatory devices; and 3. general uplifting of the tone, accuracy, integrity and civility of political discourse in America. Sharon resident Anthony Piel is a former director and general legal counsel of the World Health Organization.

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