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The Campaigns Are Over, and So Are the Ads -- but Not the Lawsuits
The National Law Journal
November 07, 2008
Nasty campaign ads did more than push ridiculed candidates over the edge this election. They drove them into court.
Negative campaign ads triggered several defamation lawsuits nationwide, with candidates crying foul and some lawyers saying enough is enough.
In North Carolina, Democrat Kay Hagan has filed a defamation lawsuit against her Republican opponent, Sen. Elizabeth Dole, over a television ad that accused her of having ties to an atheist political action committee. The ad linked Hagan to a group called the Godless Americans, stating "A leader of the Godless Americans PAC recently held a secret fundraiser in Kay Hagan's honor." It ended with a female voice saying, "There is no God."
Hagan ended up beating Dole.
In Minnesota, Republican Sen. Norm Coleman is suing Democratic challenger Al Franken over TV and radio ads that allegedly contained lies about him. The ads included statements that Coleman was named "the fourth most corrupt senator in Washington" and lives in a Washington apartment "almost rent free." A recount has been ordered in the Coleman-Franken race. Coleman led Franken by 727 votes out of about 2.9 million cast.
In Florida, John Dicks, a congressional candidate who lost in the Democratic primary is suing the winner of that face-off, claiming his opponent falsely portrayed him as being responsible for an investor losing thousands of dollars in a bad investment. The case is currently pending. Dicks v. Mitchell, No. 08-19244 (Hillsboro Co., Fla., Cir. Ct.). The defendant, Bill Mitchell, lost in the general election to Republican Gus Bilirakis.
Lawyers, meanwhile, are calling for defamed candidates to strike back against lying ads -- with lawsuits.
"If people don't strike back, it's going to have a real deterrent effect on people running for office. They need to call them out on these things," said attorney Thomas C. Chase, a solo practitioner in Fort Myers, Fla. who is representing Dicks in his defamation suit. "It's people focusing on trash talk instead of qualifications."
In the Dicks case, Chase claims that his client's opponent either knowingly published false information, or showed a reckless disregard for the truth. "John -- I've known him for years. I think he was taken aback. I don't think that he expected a fellow Democrat to do that," Chase said.
Mitchell's lawyer, William Frye of Tampa's Trenam Kemker, denied allegations that his client defamed Dicks. He declined further comment. Oddly enough, in Michigan -- where judicial elections were particularly negative, no suits have been filed as of yet.
The race for Michigan Supreme Court gained notoriety as the nation's nastiest judicial campaign, according to Justice at Stake, a nonpartisan organization that monitors judicial races. The group cited one ad that portrayed the Republican candidate, Michigan Chief Justice Cliff Taylor, as the "sleeping judge," and showed a dramatization of a judge literally sleeping on the job.
The Democratic candidate, Diane Marie Hathaway, was portrayed as being soft on sexual predators and terrorists, with one image showing an Arab-American holding an assault rifle.
Hathaway ended up beating Taylor.
"Negative campaigning is really a problem, and I would like to see something done about it," said Matthew Lund, a partner in the Detroit office of Pepper Hamilton, who worked on a successful voters' rights lawsuit in Michigan. "As a Michigan voter, I've seen an abundance of negative ads."
But unless the line of truth is clearly crossed, First Amendment advocates note, negative campaign ads will continue to roll.
"Democracies are messy," said Kary Moss, executive director of the American Civil Liberties Union of Michigan. "And the reality is that the First Amendment does provide wide latitude for candidates to make their case to the people."
