Can Kerry sue the smearboat veterans for slander/libel?

I am not a lawyer or even a law-student, but I am curious as to whether the Kerry Campaign can sue the Swiftboat Veterans for Truth for slander and libel. The legal definition of slander, according to the 'Letric Law Library is

A false defamation (expressed in spoken words, signs, or gestures) which injures the character or reputation of the person defamed; distinguished from libel.

The defaming a man in his reputation by speaking or writing words which affect his life, office, or trade, or which tend to his loss of preferment in marriage or service, or in his inheritance, or which occasion any other particular damage. In England, if slander be spoken of a peer, or other great man, it is called Scandalum Magnatum. Falsity and malice are ingredients of slander.

likewise, the definition of libel is

A malicious defamation expressed either in printing or writing or by signs or pictures, tending to blacken the memory of one who is dead, with intent to provoke the living; or the reputation of one who is alive and to expose him to public hatred, contempt or ridicule. It has been defined perhaps with more precision to be a censorious or ridiculous writing, picture or sign, made with a malicious or mischievous intent.

Both seem to be the case with the Smearboat Veterans, and I think it would be a bold and aggressive move for the Kerry Campaign to confront this with the law on its side. I don't think this would affect moveon.org or other liberal 527s since they don't seem to fit the above definitions. So my question for all you law students, political scientists, and lawyers is whether or not Kerry can sue the SVFT and whether or not such an action would be wise.

•  Penny(ies) for my thoughts?

  by ARingMD2B on Fri Aug 06, 2004 at 08:04:15 PM PDT

•  Perhaps

  But there are some things to keep in mind:

  • A libel suit would give more publicity to the liars.
    
  • Anything somewhat embarrassing, even if irrelevant, in Kerry's past is practically guaranteed to come out in the trial and be well publicized. If he has a foot fetish, we'll all hear about it.

  I think it would be very satisfying to show these douchebags that there is a limit to the smearing of a man's good reputation that one can get away with - but only if it becomes a huge story that everyone hears about anyway, and only if Kerry really has his past in order and his story straight.

  by soultaco on Fri Aug 06, 2004 at 08:07:38 PM PDT

  •  But if it went to trial

    couldn't the Kerry campaign issue a cease-and-desist order to the SVFT? It seems to me like that alone would make the  whole trial worthwhile (no rhyme intended).

    by ARingMD2B on Fri Aug 06, 2004 at 08:11:27 PM PDT

    •  I don't think so

      That would make it look like Kerry was trying to silence his critics. I don't know if the negative publicity surrounding that would be less damaging than the negative publicity coming from the lies in the book.
      

      by soultaco on Fri Aug 06, 2004 at 08:16:47 PM PDT

  •  aoeu

    I also think that the more publicity these guys get the better. The only people buying into this are the Freepers; even the republicans at my work are grossed out by the liars. If we sue, then we are on higher moral ground since we confronted them legally. Plus it does a lot to further debunk what they say. Let the hatriots be seen and heard; they disgust everyone but the like-minded.

    by ARingMD2B on Fri Aug 06, 2004 at 08:14:24 PM PDT

  •  Au contraire...

    ...legal proceedings usually shut discourse down, with all of that "can't talk about a legal matter" stuff that comes with it. I would have the lawyers sending letters to stations all day long.

    Besides, the question is always going to have to be about Kerry's service, and he always seems to win against Lt. "Champagne Unit " Bush with it.

    by cvcobb01 on Fri Aug 06, 2004 at 08:24:09 PM PDT

  •  On the flipside,

    Anything somewhat embarrassing, even if irrelevant, in Kerry's past is practically guaranteed to come out in the trial and be well publicized. If he has a foot fetish, we'll all hear about it.

    Dunno, I mean... doesn't more information and exposure about Kerry's valiant deeds hurt the Repugs more than the embarassing info would hurt us?

    by sacrelicious on Fri Aug 06, 2004 at 09:08:11 PM PDT

•  Posted on an earlier diary

  yesterday, someone had links to images of the fax sent to the stations showing these ads by the legal reps of the Kerry campaign and the DNC. It suggest that these stations are liable if they broadcast these ads with information that is known not to be true. I don't think we are quite lying down on this one.

  by BrewUnit on Fri Aug 06, 2004 at 08:16:55 PM PDT

•  I'm Pretty sure that

  Being a public figure excludes Kerry from suing these guys. I remember this from a Law class I took like three years ago. It supposedly protects our freedom to criticize those in public office and the government without the fear of prosecution. If he could sue then this line would become thin and that right would be in danger. It all comes back to the constitution. I mean imagine if Bush could sue for Slander and Defamation
   (And remember that pulling someone into litigation even if you know you will lose is a tactic of the rich and powerful to disuade the poor. Lawyers aint cheap.)

  Because Kerry has an enormous forum to defend himself against these acusations The courts have held that public figures are in a position to defend themselves without the need for litigation.
   I'm sure someone more familiar with the tort will chime in on this. Don't flambe me if I'm wrong, I took this class a long time ago.

  by smidogg on Fri Aug 06, 2004 at 08:28:02 PM PDT

  •  sadf

    Kerry can definitely sue.  Public figures have a higher burden to meet, but under the law Kerry is a public person like Clint Eastwood who sued the National Enquirer in 1993 and won $150,000.  But Kerry has to prove the group knows its lying or has a reckless disregard for the truth and he has to show malice is their motive.  Those are extraordinarily difficult burdens to meet, especially if the case comes down to eye witness accounts:  what they remember seeing Kerry doing vs. what Kerry's crewmates remember.  This is why public figures in America love to find a way to bring their suits in England because their the defendant has the burden to prove his statement is truthful.  

    I don't think there is a defamation expert in the country that would recommend Kerry take this case to trial, the chances of success are way too low and the political consequences way too high.  I have no doubt the group would love a lawsuit to give them more attention and martyr status and somehow I think their legal defense fund will find a pleuthora of donations overnight.  That's why Kerry is smart to be working the tv stations, they are conservative, profit-driven entities who eschew controversy of their own business decisions.  And I don't think it's the threat of a lawsuit from Kerry that is the real threat, I think the letter was fired off to say, "we know who you are so make this decision carefully cause our guy might be president and this ad, unlike all the others we didn't write letters about, our guy takes personally."  

    by UofAZGrad on Fri Aug 06, 2004 at 08:47:06 PM PDT

    •  I thought the "malice" requirement

      or "actual malice" as I think I remember the phrase (was it from NYT v. Sullivan?) doesn't mean malice, but is instead just a term of art for knowing the falsity of the statement or recklessness with regard to the truth.  I didn't think there was a motive requirement.

      by boy asunder on Fri Aug 06, 2004 at 09:21:18 PM PDT

      •  You are Correct [n/t]

        by SVDem on Fri Aug 06, 2004 at 09:36:53 PM PDT

•  Nope

  Thankfully, you can say just about anything about someone running for President.  Likewise, Michael Moore is in the clear.

  by NoDissentAllowed on Fri Aug 06, 2004 at 08:30:59 PM PDT

  •  Not true

    As some of the comments above have noted, Kerry's team has already sent notices to the TV stations airing these ads that they are subject to liable if they broadcast information that they know isn't true. So he's already taking legal action.

    by Zackpunk on Fri Aug 06, 2004 at 08:56:19 PM PDT

•  Not really a legal issue

  and not much worth in a legal analysis.  Think of how the PR plays - that's what Kerry's mouthpieces are doing.  Hence, the demand letter to the stations, much more likely to cave, and thus pull the ad.  3 already have. If it gets pulled more widely, perception would be that it is false.

  If you want legal, I can give it.

  by Armando on Fri Aug 06, 2004 at 08:31:29 PM PDT

  •  If you do have legal knowledge

    Could you check out my reply a few lines up and let me know if I'm talkin out my blowhole?
    Thanks

    by smidogg on Fri Aug 06, 2004 at 08:33:29 PM PDT

    •  Not exactly correct

      I had this a "discussion" at tacitus -

      Notice. . . (#259)
      M Scott Eiland (User Info) Posted on: Thu Aug 5th, 2004 at 02:52:19 PM EST  

      . . .that the threat is against the TV stations, and not the group itself.  Seems to me that Mr. Kerry and his Merry Band of hired mouthpieces don't want a frontal confrontation with the people making the accusations.  Gee, I wonder why.

      You a lawyer Scott? (#360)
      Armando (User Info) Posted on: Thu Aug 5th, 2004 at 08:59:27 PM EST  

      If you were, you wouldn't ask that question.

      From the dKos amateur pit.

      Are You Claiming That. . . (#380)
      M Scott Eiland (User Info) Posted on: Thu Aug 5th, 2004 at 09:24:45 PM EST  

      . . .the Kerry campaign would have no legal recourse against the 527 group who made the ad and is cheerfully showing it at their website, but would against any TV stations that showed the ad?  I'm inclined to ask the same question you just did:  are you a lawyer?

      Indeed I am Scott (#387)
      Armando (User Info) Posted on: Thu Aug 5th, 2004 at 09:32:38 PM EST  

      In fact, one of my main practice areas is false advertising Scott.  And I have had ads pulled Scott. And I've done it by threatening the stations Scott.

      From the dKos amateur pit.

      That's Not What I Asked (#392)
      M Scott Eiland (User Info) Posted on: Thu Aug 5th, 2004 at 09:37:21 PM EST  

      Are you saying that the Kerry campaign has no legal recourse against the 527 group:  yes or no?
      "If the cultivation of understanding consists in one thing more than another, it is surely in learning the grounds of one's own opinions."- Mill

      Probably not (#394)
      Armando (User Info) Posted on: Thu Aug 5th, 2004 at 09:40:41 PM EST  

      For that matter, probably not against the TV stations either.

      Why? Political ads are political speech.  the stuff as read COULD be couched as opinion not fact statements.  Times v. Sullivan and its progeny - you remember from law school I'm sure.

      Of course that's not your question -could they threaten the 527s? Sure? And?  Will this 527 exist after the election?  Uh no.  So who cares about a money judgment?  No one that's who.

      Ergo - the TV stations, who will continue to do business AFTER the election.  Get it?

      From the dKos amateur pit.

      OK. . . (#399)
      M Scott Eiland (User Info) Posted on: Thu Aug 5th, 2004 at 09:49:30 PM EST  

      . . .you make a valid point about the 527--but the veterans making the claims won't cease to exist after the election:  why not sue them if they're "defaming" Kerry?  The Kerry campaign could even go after the royalties from the book they're promoting, if they've got a connection to it.

      Interesting idea (#401)
      Armando (User Info) Posted on: Thu Aug 5th, 2004 at 09:57:42 PM EST  

      But I wouldn't do that NOW.  Why?  Because it would be spun as Kerry trying to censor them - bad PR move.

      Now, getting the stations to do it - that is gold.  Why?  Because legally they don't have to if they think its  true or opinion.  Of course, you and I know that the decisions won't be based on whether they think it's true or not - it will be based on dollars and cents.

      My point here, and sorry about the arrogance, that's the lawyer in me, I think I hold it in check on other issues, is that who Kerry goes after and WHAT they do will tell us little of the underlying truth - although the perception could be that it does.

      And that is precisely why it is a good legal and PR strategy for K/E.  the search for the answer won't come, IMO, from the tactics adopted by the lawyers.

      You guys should know by now that litigation is about as far from the search for the truth as you'll ever find.

      From the dKos amateur pit.

      . . .

      Float Like A Butterfly. . . (#269)
      M Scott Eiland (User Info) Posted on: Thu Aug 5th, 2004 at 03:12:18 PM EST  

      . . .sting like a butterfly, Harley--you've done better.  Kerry's people are claiming that the ad is lying (of course, they misrepresent the claims in it while doing so, but that's just routine for the Ticket of the Lesser Johns).  But they're not threatening to sue the people they actually claiming are lying--they're threatening to sue the TV stations.  Sounds like they don't want a direct confrontation in court--they want to give the stations a pretext to refuse to show the ads.  What's the matter--afraid to directly confront the "liars" in court?

      Again Scott (#362)
      Armando (User Info) Posted on: Thu Aug 5th, 2004 at 09:01:48 PM EST  

      If you were a lawyer you would not be asking that question.  You simply don't know what you are talking about.

      All the military guys know their stuff, I know mine.

      False advertising and media law is what I do.

      Here's a hint - what's the quickest way to get the ads down?

      From the dKos amateur pit.

      Oh, It's The. . . (#377)
      M Scott Eiland (User Info) Posted on: Thu Aug 5th, 2004 at 09:19:09 PM EST  

      . . .quickest way to get rid of the ads--if for no other reason that the stations probably don't mind having an excuse to not show them:  there's always some other ad to take its place in the election season.  However, it certainly doesn't show the confidence that directly confronting the accusers does--and perception is a big part of this issue.  You don't have to have gone to law school (which I have, though I no longer practice--your detectors are on the blink) to see that.

      Perception is (#384)
      Armando (User Info) Posted on: Thu Aug 5th, 2004 at 09:30:19 PM EST  

      The ads were pulled - public will think they were false. Seriously Scott, this is what I do.

      From the dKos amateur pit.

      You're Overlooking The Fact. . . (#389)
      M Scott Eiland (User Info) Posted on: Thu Aug 5th, 2004 at 09:35:43 PM EST  

      . . .that the ads are being shown on news shows, and that the website is still merrily showing the ad.  Your strategy would work great for a local ad, but for an ad that's gone "national" like this one, it's like trying to stop the ocean from coming through a chainlink fence by sticking a finger in one of the holes.  It doesn't stop people from seeing the ad, and the media will keep showing the ad and many will note that the Kerry campaign seemed awfully anxious to stop it.  

      Overlooking? (#396)
      Armando (User Info) Posted on: Thu Aug 5th, 2004 at 09:43:50 PM EST  

      Au contraire (heh) I'm counting on it - I want the story of the ad being pulled to get NATIONAL coverage.  Then they would be perceived as false -otherwise why pull them?  Of course, it proves nothing of the sort - it just proves the TV stations don't want the headache.
      From the dKos amateur pit.

      Hmmm. . . (#400)
      M Scott Eiland (User Info) Posted on: Thu Aug 5th, 2004 at 09:53:07 PM EST  

      . . .that's a rather high risk strategy, wouldn't you say?  For one thing, what if the stations don't pull the ads?  Then you've got the extra news attention along with the regular showings of the ad.  And, as you say, the legal basis of the suit is questionable.  Losing a preliminary challenge in district court would be a nasty setback to the Kerry campaign.

      True (#403)
      Armando (User Info) Posted on: Thu Aug 5th, 2004 at 10:02:42 PM EST  

      Thats why I said to Harley don't be so sure the idea isn't to get the ads off.  It does carry risk and I was a bit surprised to see that Kerry had pulled the trigger on this.

      What it tells me is that Kerry's lawyer's think they have a strong position - but you know what, lawyers are wrong a lot.  I'm not sure I would have done it. But if you do it, you do it against the stations where the bar will be the lowest.

      That's why the stations.

      From the dKos amateur pit.

      OK (#404)
      M Scott Eiland (User Info) Posted on: Thu Aug 5th, 2004 at 10:08:52 PM EST  

      I can buy it as a tactical decision--but if I was the PR guy for the 527, I'd spin it as a refusal to confront them directly, and they have access to the media.  As you say, it carries risk, and the circumstances create more risk than would be usual for a situation analogous to this in a less media-saturated situation.

      We've probably just talked (#406)
      Armando (User Info) Posted on: Thu Aug 5th, 2004 at 10:30:00 PM EST  

      our way through what the spin will be over the next few days.  And having thought about it, I think Kerry was premature. I thought they had a good day with it today - especially becaus e of McCain.

      But I know you guys are more interested in the substance of it all - frankly, I'm not.  I'm for Kerry on policy, not war hero.

      Thanks for the discussion - I know I started snarky, but really enjoyed it.

      From the dKos amateur pit.

      by Armando on Fri Aug 06, 2004 at 08:47:46 PM PDT

    •  Law

      False statements about a politician are not absolutely immune from a slander/libel cause of action, but Kerry would face a real uphill battle were he to file suit.  

      To begin with, most jurisdictions exempt statements of opinion (as opposed to statements of fact) from giving rise to a defamation claim.  Accordingly, all of the bullshit about how certain individuals believe Kerry is "not entitled" to his awards would be thrown out immediately, as would anything else that could arguably be characterized as an opinion.  And even as to the false statements of fact that have been made, because Kerry is a "public figure," he would have to establish that the speaker acted with "actual malice" -- meaning that the speaker knew the statement to be false when made or issued the statement with reckless disregard as to its truth.  Needless to say, neither of these requirements is easy to meet.

      Regardless, I agree with the others here who have made the point that filing suit would be politically disastrous.

      by SVDem on Fri Aug 06, 2004 at 08:56:17 PM PDT

•  what I'm wondering is...

  if George Elliot lied in his affidavits (as reported by the Boston Globe) whether he can be charged with perjury.

  by Trix on Fri Aug 06, 2004 at 08:44:05 PM PDT

  •  Si

    Especially here, in furtherance of a defamation

    by Armando on Fri Aug 06, 2004 at 08:48:29 PM PDT

    •  maybe that's why...

      Elliot appears to be disavowing his disavowal.

      by Trix on Sat Aug 07, 2004 at 12:11:32 AM PDT

  •  Yes he could.

    Especially if he has two conflicting affidavits.

    by Delaware Dem on Fri Aug 06, 2004 at 09:36:55 PM PDT

•  whoever checked "not possible" is wrong

  It's always possible to sue in the US for damn near anything, so the "not possible" choice is just wrong.  Of course it is possible for Kerry to sue.  The only argument is whether it's a good idea or not.
  

  I think that the answer is "not".  Yes, accuse these people of lying, but a court case wouldn't be heard until after the election in any case.
  

  by Joe Buck on Fri Aug 06, 2004 at 09:04:54 PM PDT

•  Defamation (Slander and Libel)

  I am an attorney, although defamation is not my field.  So I will tell you what I remember from law school.

  Slander is that which is spoken defamation (ie. TV, radio, person to person verbal communication)

  Libel is printed defamation (letters, newspapers, and possible internet websites)

  To prove defamation, a Plaintiff (Kerry) must show that a Defendant printed or aired defamatory language of or concerning the Plaintiff with publication to a third person that causes damage to the Plaintiff's reputation.  

  However, since Kerry as a Plaintiff is a public figure and since the accusations of the SBVT involve a matter of public concern, Kerry must prove the falsity of the defamation, and that the SBVT acted with actual malice (knowledge of the falsity of the accusations or reckless disregard for the truth of the accusations).  

  That is going to be hard to prove.  Mostly the accusations are opinions, not facts, so it will be hard to prove that the accusations are false.  

  Plus, I think it would be unwise to bring a cause of action right now or later.  The SBVT are largely discredited due to their recantments or their prior statements, and the media is largely reporting the slander as it is and not as though it is true.

  Bring suit makes Kerry look like he is petty.  He should rise above it.  JMHO.  
  

  by Delaware Dem on Fri Aug 06, 2004 at 09:35:37 PM PDT

  •  An A

    on the exam DD.  I do alot of Media law.

    by Armando on Fri Aug 06, 2004 at 09:43:43 PM PDT

  •  Well done, counsellor

    I'd just like to add that in some jurisdictions, you have to show actual damages, i.e. that you have lost money because of the publication of the false statement.  Under the facts as presented, that's a very difficult burden to meet.

    But I'm sure that a case can be made for defamatory speech...and I'm glad Team Kerry is making it.  Otherwise, they're going to keep trying this crap over and over and when something is likely to stick, we'll have another Willie Horton ad to deal with.

    by Manhattan Dan on Fri Aug 06, 2004 at 11:58:14 PM PDT