Defamation, public officials, smear ads and election season

The general election is in three months, and writers of political advertisements, editorials, and blogs are firing on full cylinders against both parties with what is known as smear campaigns. Although many voters become frustrated with these campaigns, political officials are not awarded the same protections as private citizens in regards to the possible defamatory statements made during these campaigns.

Computer keys of a laptop.

Indialantic, Fla. (Aug. 5, 2012) Computer of a Journalist (Photo by: Elizabeth Counsman)

According to the Citizen Media Law Project, “Florida has a broad conception of public officials, a category of government actors who must prove actual malice in order to prevail on a defamation claim.”

Politicians have constantly questioned whether or not they should be given more protection against defamatory statements in these smear campaigns, which are otherwise known as attack ads.

According to the Changing Face of Political Campaigns, “an attack ad is an advertisement meant to attack an opposing candidate or political party. They are generally negative and criticize the adversary’s political platform by highlighting the opponent’s faults and comparing them to the candidate’s own platform. However, biographical, emotional, endorsement, factual, humorous, issue, personal, record, and response ads are also used.”

Many voters question the legality or ethical value of these smear campaigns. One Brevard County attorney in the public sector is very distraught by the amount of smear campaigns that have flooded the media. “The statements made about the candidates by their opposition are nothing less than defamatory garbage to me, but I greatly value the importance of having this right to question our political officials and soon to be officials,” said the Brevard County attorney.

Brevard County voter, Meghan O’Hara said that she finds the smear campaigns to be mostly lies. “I’d be much more likely to vote for that guy, whatever party they are,” said O’Hara. “We as Americans need to get more on the same page. Instead, most of us are not even in the same book! Frustrating time.”

It will be up to voters to muddle their way through the muck of smear to find the facts in the plethora of material published between now and the day of the election. “The voters must take on the responsibility to research the candidates to make sure they have their facts straight concerning the candidates’ positions on the issues,” said the Brevard County attorney.

Because the candidates fall under the legal categories of either public officials or public figures, they receive very little protection under defamation laws; therefore, the media is granted extraordinary leeway in reporting on political campaigns.

In the landmark case, New York Times v. Sullivan, the Supreme Court held that a state cannot award damages to a public official for defamation unless actual malice was proven.  According to this case, “actual malice,” could only be established when the plaintiff proves “that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”

The New York Times Co. v. Sullivan case confirmed the Supreme Court’s commitment to protecting the integrity of the First Amendment. Anthony Lewis, author of “Freedom for the Thought that We Hate,” wrote “the Sullivan decision has been roundly criticized by some politicians who say it makes their life more difficult. It undoubtedly does.” Lewis said that the Sullivan decision emphasized the importance of the American right to criticize government officials.

As written by the judges of the United States Court of Appeals for the Second Circuit in their opinion for the case of Zherka v. Amicone, in his Official Capacity as Mayor of the City of Yonkers, “[t]he arena of political discourse can at times be rough and tough. Public officials must expect that their decisions will be subjected to withering scrutiny from the populace. A public official’s response to that criticism is subject to limits, but the injury inflicted by that response must be real. Without that limitation, the Constitution would change from the guarantor of free speech to the silencer of public debate.”

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