The difficulty in proving slander and libel

by Chris Markham. 0 Comments

Ok, were back on solid ground here. A few weeks ago, I made mention of an interesting column I was going to share. Well, those of us in the Penn State University universe were kind of shaken up by recent events, and thus, I wrote a column based on why I thought Penn States iconic coach needed to be fired. Sad stuff, that. Even sadder still are all of the ancillary issues that continue to plague my alma mater. More on that at a later date.

As for this week, theres a topic that I found more amusing and less emotionally draining. It appears that a congressman from Ohio is suing an organization that he feels lost him his most recent bid for re-election. The most surprising aspect about this case is that this appeared to be a frivolous lawsuit, but now the case will be going to trial.

This is an interesting little matter (to us, of course; we didnt lose our jobs as a result of whatever the congressman said went on). The congressman always had a very pro-life agenda, and, during the most recent election, one organization, The Susan B. Anthony List, came out and stated that the congressman was in favor of abortion. Now, either the group completely lost its marbles and there was an issue of mistaken identity, or the group really did defame the congressman. Allegedly, then, as a result of The Susan B. Anthony Lists misstatement, the congressman lost his reelection bid.

Under the law of defamation (which includes slander and libel), you have to have a false statement, said or printed with reckless disregard for the truth that causes the subject of the written word or spoken statement damages. In this, the key is damages. If you cant show that you suffered damages, you have no case.

In the United States, public figures have little to no protection from slander or libel. Because these folks inject themselves onto the public stage, their expectation of privacy is pretty much nil. Thus, there is very little a public plaintiff in a defamation or slander case can do to recover in the United States. In Great Britain and Europe, its a different story and a column for another day. The biggest issue I have with this case going forward, aside from the public figure aspect of it, is how does the congressman know that the Lists assertions actually caused him to lose the election?

An election is a huge machine with many moving parts. If a few break down, that could be fatal to the campaign. In this instance, the Congressman has to prove that if it weren't for the statements of the List, he would have prevailed in his political race. That would take a lot of doing. The best I could figure is that he would have to call up a bunch of people that voted for his opponent, and have them state, on the record, that, if they hadnt been privy to the information disseminated, they would have voted for him.

This trial could be chilling upon the political discourse of this country as we know it; even the ACLU came out against this lawsuit. One of the bedrocks of our political system is that anyone can say anything about anybody, and, if that person is a public figure, he or she has to just shut up and take it.

Sure, public figures can say certain rumors are false, and they have to hope that their constituents understand the difference between the person they are and the false things that are being said about them. History is filled with these types of character assassinations that are exposed as wrong, eventually, usually after the election.

President Grover Cleveland was rumored to have an illegitimate child, Michael Dukakis was accused of being soft on crime, and Bill Clinton was accused of having many, many affairs (ok, well maybe there was a little truth in that one). But, even so, politicians have to understand that there are a great many people out there that do not have a command of the facts and that it is up to those politicians to educate the people on what is right. If they cant break through that noise, well then, looks like the people have had enough of them being in office.

Can you imagine what would happen if every politician sued as a result of a loss? Not only would that provide a strange, new precedent, but there's a chance that no one would run for office again and, more importantly, no one would ever speak out against a candidate they dont agree with. Thats chilling indeed.

Christopher Markham writes a regular column for

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