Slandered, Libeled

by Brad Molnar

After FBI investigations did not confirm allegations against Judge Bret Kavanaugh a caller on a national radio show said Dr. Ford and the other accusers should be sued for libel. After coverage concerning the accuracy of our various candidates for the U.S. Senate and House the commenter’s section always have the faithful opining their champion should sue their adversary for slander, libel, or defamation. The law is clear: Montana Code Annotated 27-1-801 Defamation, 27-1-802 Slander, 27-1-803 Libel, and 45-8-212 criminal defamation.  They are all shades of each other. The first three are addressed through civil action. The fourth is worthy of six months in jail.

Libel/slander/defamation is a false statement that holds a person up to contempt or ridicule with adverse affects on their lives/occupation. Political ad writers consider it an art form.

Never Heard in the Bible

Rosendale is credited by Tester and his allies for working tirelessly to deny insurance coverage to people with pre-existing conditions. An ad featuring a blond Billings teacher making that accusation directs to a 3/14/17 article in the Havre Daily News as proof. Look it up. The article is headlined “Rosendale: Healthcare proposal a good first step” and highlights Rosendale’s plan to insure people with pre-existing conditions.

In debate Tester accuses Rosendale of hoping to sell off public lands. This has been debunked by statewide media. But it is born anew daily.

Two Steps Closer to the D.C. Line

William’s most recent ad accuses Gianforte of wanting to harm people with pre-existing conditions and raise the insurance rates for the elderly citing Gianforte’s vote for the Graham-Cassidy Act which tried to repeal Obama care. Gianforte is quoted as saying he wants to take the federal funds for pre-existing conditions coverage and subsidizing insurance costs for the elderly embodied in Obama care and block grant those funds to the states for the same purpose. Then he said, “I think that’s right.”

Now Gianforte attacks Williams for (drum roll) wanting to harm the elderly by “stripping Medicare of $800B”. This is apparently a reference to discussions concerning “Medicare for All”. William’s campaign responded to me that she is not in favor of Medicare For All and the allegation is a Gianforte “creation”. Gianforte’s campaign never responded.

Finding false attack ads by Rosendale against Tester is difficult because Matt now prefers to wrap himself in the Trump flag like a Republican Burrito.

But early in the campaign Rosendale starred in a commercial claiming that in 2013 Tester had “gone Washington” and bought a “million dollar cosmopolitan castle”. That value was exaggerated  by 25%. In fact the home’s value was below the current median home cost in the D.C. area. A Rosendale staffer told me the ad was designed to make Tester look “slimy”.

So how is it that public officials like Kavanaugh, Tester, Williams, Gianforte, and Rosendale are not protected from slander, libel, or defamation? Why do we accept that those who would lead us use unfounded character assassination as a weapon of choice?

Keeping Our Customers Satisfied

Rick Breckenridge (L) got it right at Saturday’s debate that Rosendale and Tester were just throwing accelerrant at each other to fan the flames of partisanship to energize their base; truth be damned.

Because Politicians are Special

This all stems from the 1994 U.S. Supreme Court ruling entitled “New York Times v Sullivan”. In this case Sullivan, a city commissioner, sued the New York Times for $500,000 because they printed an ad containing minor errors and exaggerated claims against him. The Alabama Supreme Court upheld the jury’s findings based on state law which simply required the statement be false. In a unanimous decision an activist U.S Supreme Court created the term “actual malice”, applied it to the case, and reversed. Since that day public officials can be criticized with impunity regardless of the accuracy of the statement. The publisher (candidate) is held harmless unless the libeled can prove the statement was made “with actual malice (knowledge that the statement is false or in reckless disregard of the truth or falsity)”. Proof as to what someone knew is all but impossible to prove so slander charges against politicians/candidates are rarely brought and even more rarely upheld.

Epilogue

First my apologies to Simon and Garfunkel’s “Keep the Customer Satisfied”.

Second, that which was designed to protect free speech now protects the denigration of democracy. To be clear, the Montana statutes referenced above refer to you. You can be sued for liable. Its political ad writers, dark money groups, and those that “approve this message” that are protected.