A Sioux City jury awarded Republican State Senator Rick Bertrand $231,000 over a television commercial that attacked him shortly before the 2010 general election. It is rare for a defamation case based on political advertising to succeed, for reasons explained below.
UPDATE: Governor Terry Branstad suggested on April 9 that this verdict has got him thinking about suing the Democratic Governors Association over their 2010 campaign materials. Details are at the end of this post.
LATER UPDATE: Incredibly, Bertrand is appealing this verdict in order to seek punitive damages as well as the compensatory damages the jury awarded. More comments below.
In late October 2010, the Iowa Democratic Party paid for a 30-second tv ad criticizing Bertrand in the Sioux City market. Bertrand's Democratic opponent, Rick Mullin, approved the content of the commercial. Bertrand filed the defamation lawsuit in Woodbury County District Court almost immediately. The ad stayed on the air, but Bertrand's allegations became a major news story in local media during the last ten days before the election. Bertrand defeated Mullin in the Democratic-leaning old Senate district 1 by fewer than 300 votes.
You can view the ad on this page at the Sioux City Journal's website. Partial annotated transcript:
Male voice-over: Because Bertrand doesn't want you to know he put his profits ahead of children's health. [words on screen: BERTRAND'S COMPANY MARKETED SLEEP DRUG TO CHILDREN superimposed over text from an article in The Age, 10/30/07, "Drug firm tops ethical offender list"]
Bertrand was a sales agent for a big drug company that was rated the most unethical company in the world. [photo of Bertrand on right side of screen. Words on screen: RICK BERTRAND DRUG SALESMAN FOR MOST UNETHICAL COMPANY IN WORLD, "Drug firm tops ethical offender list" The Age, 10/30/07]
The FDA singled out Bertrand's company for marketing a dangerous sleep drug to children. [Article from The Age is on screen, with these words superimposed: MAJOR SIDE EFFECTS INCLUDE BEHAVIOR CHANGES SUCH AS SELF-HARM]
Public figures such as candidates and elected officials usually have no hope of winning a lawsuit based on political advertising. Brooks Jackson explained why at FactCheck.org:
Supreme Court decisions make it extremely difficult for a public figure - especially anyone running for public office - to win a libel case even if what is said about them is false.
What we said in a Special Report in 2004 bears repeating: "Candidates have a legal right to lie to voters just about as much as they want." There is no federal truth-in-advertising law that applies to political ads, and the very few states that have tried such legislation have had little or no success.
Regarding private lawsuits, the Supreme Court held in the landmark Times v. Sullivan case in 1964 that a public official can't collect damages for a defamatory statement - even if it is false - unless he or she can prove "that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false." Proving that somebody knew something was false is a very tough thing to do. And a defendant can always claim that he or she believed the false statement to be true, or can show that there was at least a grain of truth to it, and thus claim that there was no "reckless disregard" for the truth.
The U.S. Supreme Court ruled in Brown v Hartlage, "Erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the 'breathing space' that they need to survive."
Sometimes public officials file libel or slander lawsuits for political reasons, not expecting to win in court:
[T]here may be a strategic element involved to a political defamation case. Defamation suits can be used to scare various media sources from originally publishing ads or may prevent further dissemination of attack ads. Defamation law suits may even be used as a way to publicly challenge the offensive allegations in a campaign ad. At the end of the day, when the public official's image is on the line, filing suit may be a strategic victory.
I didn't realize Bertrand's case had gone to trial. I wrongly assumed that having succeeded in making Mullin look bad when it counted, Bertrand would not pursue the long-shot legal claim after the election.
On Friday a jury ordered the Iowa Democratic Party to pay Bertrand $200,000 in damages and ordered Mullin to pay Bertrand $31,000 in damages. I see why the jurors sympathized with the Republican candidate, because this commercial seems to distort his previous work. Nick Hytrek and Nate Robson reported for the Sioux City Journal,
Bertrand, a former regional manager for biotech company Takeda North America, the U.S. unit of Japan's Takeda Pharmaceutical Co., said in his lawsuit that he has never owned a drug company, nor did he ever sell the pediatric drug alluded to in the ad.
On the other hand, I do not think the jury reached the correct conclusion, and if the defendants appeal, I expect a higher court to overturn this verdict. Although the commercial referred to "Bertrand's company," the voice-over clearly stated that Bertrand was a sales rep, not the owner of the firm. To prove that Mullin and the Iowa Democratic Party had a "reckless disregard" for the truth, plaintiffs would have to prove that Mullin and the ad-makers knew that Bertrand never marketed that particular sleep drug for his former employer. That would be difficult to demonstrate in court.
Bertrand can't prove he suffered damages because of the commercial, because he won the election anyway, and he no longer works for Takeda (and therefore hasn't lost business as a drug company representative).
Republicans ran plenty of deceptive television commercials during the 2010 campaign. Some of those ads:
* accused Governor Chet Culver of running a non-existent billion-dollar deficit.
* exaggerated the cost of the I-JOBS infrastructure bonding program.
None of that false advertising led to defamation litigation, because U.S. courts have protected even false political speech.
The Sioux City Journal paraphrased University of Iowa political science professor Tim Hagle as saying that "successful libel and slander lawsuits such as Bertrand's are rare and often get overturned on appeal." If that happens, Bertrand won't receive $231,000 in damages. Nevertheless, he will always be able to savor the fact that he won the election and holds over in the new Senate district 7 until 2014.
UPDATE: Bertrand commented on the case to Radio Iowa:
"This is how you change the face of American politics, it's by standing up to the political party machine," Bertrand said. "This is how it works." Bertrand, who used to work for a pharmaceutical company, says he never sold the controversial pediatric drug that was mentioned in the ad.
"This was about truth versus lies," Bertrand said during a phone interview. Bertrand's attorney argues this case has national significance "because the jury held the political party liable for false personal attacks against a political candidate." Bertrand says he hopes the case does something to reduce the "slime" that's spread in some campaign ads "no matter what party" is doing it.
"This wasn't about, you know, stretching the truth or angles," Bertrand said this evening. "It was basically saying lies to assassinate a character to win votes."
SECOND UPDATE: Governor Terry Branstad weighed in at his weekly press conference on April 9 (click through for the audio).
The Democratic Governors Association formed a group called "Iowans for Responsible Government" and, during the GOP primary campaign, denounced Branstad's 16-year taxing and spending record in radio and TV ads as well as pamphlets mailed to Iowa voters.
"I felt that I was the victim of a real slanderous campaign that was conducted by this 'Iowans for Responsible Government' which turned out to be a front group that was really the Democratic Governors Association," Branstad told reporters this morning, "not disclosing who they were and trying to fool Iowan voters into thinking they were a bunch of conservatives when they were a bunch of liberal Democrats."
Branstad suggested last Friday's decision by a jury in Sioux City is prompting him to think about a defamation suit against the Democratic Governors Association. The jury found the Iowa Democratic Party and a Democratic candidate for the senate were guilty of libel and slander against a Republican running for the senate. The jury awarded State Senator Rick Bertrand of Sioux City $231,000 in damages, which Governor Branstad suggests is unprecedented.
"I am excited about that, to tell you the truth, because this is the first time I've heard of a candidate or an office-holder actually winning a defamation lawsuit, so that's pretty unusual," Branstad said. "...But I think it's encouraging and maybe it will make people think twice about making outlandish statements that amount to libel or slander."
I would think twice about filing that lawsuit. Not only would Branstad lose, he would invite more scrutiny of his own lies about Chet Culver's record in 2010. The Branstad campaign spent hundreds of thousands of dollars on statewide television commercials and other campaign materials that showed a reckless disregard for facts.
THIRD UPDATE: Bertrand is clearly not the sharpest legal mind in the Iowa Senate. Bret Hayworth reports for the Sioux City Journal that the Republican is appealing the decision:
The court rejected a motion to let the jury award punitive damages -- a type of compensation usually meant to deter others from doing the same act.
Bertrand in a statement Monday said he's appealing the decision because the jury should have had a say in whether he deserved additional money. He said the decision should send a message.
"I want this to become precedential law and stop the political machines from doing this again to other people," he said.
Bertrand should have sat tight, hoping that the Iowa Democratic Party wouldn't appeal this highly unusual ruling. Instead, he decided to invite a higher court to scrutinize the case.
Meanwhile, Jennifer Jacobs reported Monday for the Des Moines Register that Democrats also intend to appeal the ruling.
A spokesman for the Iowa Democratic Party, Michael Hunt, said in a written statement that party leaders respectfully disagree with the verdict.
"We conducted a fact-based campaign against Senator Bertrand in 2010," Hunt said.
The ruling quickly generated buzz in the Iowa political world.
"This is a big deal," said Christopher Rants, a former GOP leader in the Iowa House skilled in running legislative campaigns. "It is going to make candidates and parties very careful in what they say."
Bertrand's lawyer, Jeana Goosmann of Sioux City, said she's unaware of any political party defamation case in Iowa that was pursued all the way to a verdict and an award of damages.
The decision won't prevent negative ads, but it should send a message to candidates to not make false personal attacks on another candidate's character or business, Rants said.
"This wasn't about a vote or something that Rick Bertrand had done in the Legislature or a position he had taken on an issue. This was about his personal background and what he did for a living. I think there's a tremendous difference there," Rants said. "That said, it's going to make people do another check of the facts before they make allegations against a candidate in the future to make sure they've got it absolutely correct."
Jacobs' piece also states, "Bertrand paid for the legal defense out of his own pocket, not out of campaign accounts."