Department of long-shot lawsuits (updated)

JANUARY 2013 UPDATE: Boswell dropped this lawsuit.

I don’t know whether anyone connected to Representative Leonard Boswell dangled a job in front of Ed Fallon in early 2008. But I’m confident that the defamation lawsuit Boswell filed against Fallon won’t end in a courtroom victory for the man who won the contentious 2008 Democratic primary in Iowa’s third Congressional district.  

On September 24, Fallon sent an e-mail to his “Fallon Forum” list with the subject line, “Don’t Waste Vote on Boswell.” Here’s the relevant portion:

Dear Friends,

Just as I am most certainly voting FOR Barack Obama, I am most certainly NOT voting for Leonard Boswell. I am also not voting for Tom Latham. Before I tell you who I AM voting for for Congress, let me give you five reasons why you, too, should not vote for Boswell.

1. Lack of integrity. Perhaps you have your own stories. I have heard some of them. Mine include Boswell sending an aide to bribe me with the offer of an $80,000 a-year job to not run against him. The aide also told me that Boswell was so in love with power that he had “become like Gollum with the ring.” The 2008 campaign itself was brutal, and it seemed there were no lies or half-truths that Boswell and his operatives would not stoop to.

2. Of the Democrats who have represented Iowa in Congress over the past several decades, there are none whose voting record is more out of sync with Democratic priorities than Boswell. Yet Party leaders insist we support him because Latham is so, so bad. It’s a lousy argument and we shouldn’t buy it, because when we do it empowers the Party to stuff another corporate Democrat down our throats next time. In fact, I guarantee you Party insiders have already drafted the short list of pro-big-business Democrats they want to foist on us when Boswell loses.

3. A common reason given for not voting for third party candidates is they will most certainly lose. Well, Boswell will most certainly lose, so let’s be consistent. In 2008, Boswell outspent me 3 – 1 and I got trounced (39%). At last count, Latham raised six times as much money as Boswell. I sure wish money in politics didn’t matter, but let’s be realistic. There’s a name for a candidate who gets outspent 6 – 1. It’s “loser.”

4. Some argue that Democrats and moderates need to support Boswell because we don’t want the US House controlled by right-wing Republicans. Granted, Paul Ryan’s House is a very scary place. But even the most favorable projections don’t see a path to Democrats taking control of the House. So, Boswell losing will not tip the balance of power in Congress.

5. Conceding the seat to Latham opens the door for a strong, progressive-populist Democrat to win the primary in 2014 and beat Latham in an election where voters are actually presented with a clear choice. The best thing we can do in the third district is to create some momentum through a write-in campaign for a strong progressive who can beat Latham in 2014. So, with that in mind, I’m writing in …

Frank Cownie! To be clear, I have not communicated with Frank about this in any way, shape or form. In fact, Frank may want to issue a disclaimer, and that’s fine. But Frank, you’ve served well as Mayor of Des Moines. You’ve got your priorities right. You’d make a heck of a Congressman, and if enough of us write-in your name, it will send a message to the Party elite that we won’t tolerate another hand-picked corporate Democrat representing us in Congress.

And to be clear about one other thing: I am absolutely not running for Congress ever again, neither in this life nor the next.

For the record, I voted for Fallon in the 2006 gubernatorial primary and in the 2008 primary to represent IA-03. I’ve also voted for Boswell in every general election since he’s represented Polk County and will do so again when I fill out my ballot at the auditor’s office this week.

Boswell’s cast plenty of bad votes from my perspective, especially on environmental issues. For that reason, I stopped donating to Boswell’s campaigns years ago and haven’t done any volunteer work on his behalf since 2006 (or maybe 2004). But compared to Latham, Boswell is the lesser evil by a mile. Click the links below to look at their voting records on your priority issues.

{{Tom Latham}}

{{Leonard Boswell}}

If Boswell loses in November, Latham will represent IA-03 for the next decade, regardless of whether the 2014 Democratic primary winner is a “strong, progressive-populist” or a “hand-picked corporate Democrat.”

But I digress. This post is about the defamation lawsuit Boswell filed on September 28, challenging Fallon’s claim about the job offer. Boswell has not elaborated on the legal action, except to say that he filed suit “Because [Fallon] told an untruth.”

I remember hearing rumors about this alleged job offer in early 2008 (not with any specific salary attached). Fallon acknowledged on Friday that he has told the story before, just not in such a public way.

“When it became clear to Leonard Boswell that I was going to run against him in 2008, he sent one person and then another person to meet with me and the idea was they’d give me an $80,000 job with his congressional staff if I would agree not to run,” Fallon told Radio Iowa tonight. […]

According to Fallon, it’s not just his word against the Boswell staffers. There was another witness.

“My wife at the time, Lynn, was with me at both meetings and the two people that we spoke to – again, I’m not making this up – if they want to commit perjury, then they can do that,” Fallon told Radio Iowa. “But if they’re going to tell the truth, the truth is he offered me that job.”

Lynn Heuss Fallon and Ed Fallon divorced two years ago. Fallon said he spoke with her today, after he was served with the legal papers notifying him of Boswell’s lawsuit. Fallon said he didn’t bring the alleged bribe up during his 2008 campaign against Boswell because he “didn’t want to stoop to that level.”

“I’ve mentioned this to people over the years. This just happens to be the first time that I’ve mentioned it in the context of a more public conversation, but to be frank to you, I’m surprised that it’s come to this,” Fallon told Radio Iowa tonight. “I’m surprised that Congressman Boswell wants to take this step because it’s not going to be good for him or for the impression that people have [of] politicians in general.”

As a public figure, Boswell has a very high bar to clear in any defamation claim. First, he needs to prove that Fallon’s allegations are false. Second, he needs to prove that Fallon spoke with “actual malice,” meaning that “the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth.”

If this case goes to trial, it’s going to be Fallon’s word (and possibly Lynn Heuss’ word) against the word of the two people allegedly connected to Boswell. Maybe they will deny ever meeting with Fallon and his wife. In that case, it’s the testimony of two people against the testimony of two other people. Fallon does not have the burden to prove that what he said reflects what really happened. Rather, Boswell’s attorney must prove Fallon’s claim is false.

Maybe these people will testify that they did meet with Fallon in early 2008, but not to offer him a job in exchange for staying out of the Congressional race. Even if Fallon misconstrued those conversations, it’s not defamation, because there would be no proof Fallon made inaccurate statements with “malice” toward Boswell.

Maybe Boswell will testify that the people who met with Fallon weren’t his employees, or weren’t acting with his knowledge and authorization. Again, Fallon could defend himself from a defamation claim by showing he had reason to believe the people were representing Boswell.

Aaron Larson listed factors for people to consider before filing a defamation lawsuit.

High Cost – Defamation actions tend to be costly to pursue. When brought against major media companies or publishers, or their employees, you should expect that the case will be capably defended by highly skilled defense attorneys.

Low Recovery – Defamation actions rarely result in sizeable awards of damages, and it is not unusual for the cost of pursuing a defamation action to exceed the ultimate recovery.

Publicity – The publicity associated with litigating a defamation claim can actually serve to expose a greater audience to the false allegations than they previously enjoyed. In the event that a newspaper or news show picks up the story of the defamation lawsuit, defamatory statements previously known to only a handful of people can suddenly become known by the entire community – sometimes the entire nation or world. Sometimes the media will do a poor job of subsequently covering the verdict, such that the public hears the defamatory allegations but doesn’t learn that the plaintiff was successful in the lawsuit.

Difficulty of Proving Defamation – It is sometimes not possible for a plaintiff to establish all of the elements of a defamation action, even where the defendant’s statements were entirely false. Most people who hear that a plaintiff lost a defamation action aren’t interested in the nuance – they will instead assume that the loss means that the allegations which inspired the suit were true.

Those last two points are critical. I don’t know how many people receive Fallon’s weekly e-mails, but it must be a lot fewer than the number of people who learned of the alleged job offer through a news report about Boswell’s lawsuit.

Moreover, if Boswell loses this case for any reason, many casual observers will conclude that what Fallon said must have been true.

In my opinion, it would have been less politically damaging for Boswell to deny Fallon’s claim through a spokesperson and move on.

On the other hand, filing a lawsuit has some PR value, because it communicates a strong denial. Perhaps Boswell and his advisers felt that at the height of a tough re-election campaign, it wouldn’t be sufficient simply to refute what Fallon wrote.

Win or lose in November, I doubt Boswell will take this case to trial. Elected officials rarely win defamation lawsuits. (Republican State Senator Rick Bertrand’s surprising victory in a case related to a 2010 campaign ad is the exception that proves the rule.) Why spend a lot of time and money on a trial that’s unlikely to produce the verdict you want, let alone a substantial award for damages?

UPDATE: Fallon confirmed on October 1 that he will fight the lawsuit and has hired Joseph Glazebrook to represent him in legal proceedings. Glazebrook has been in the news lately as the lead attorney representing the American Civil Liberties Union of Iowa and the League of United Latin America Citizens in their lawsuit against voter roll maintenance rules enacted by Secretary of State Matt Schultz this summer.

  • I didn't think for a minute

    that the lawsuit was filed for any reason beyond PR value. I imagine it will be withdrawn right after the election.

    I avoided the Boswell-Fallon contretemps in 2008. I have no problem with primaries, which, in this case, might have been the appropriate time to air this dirty laundry, whether Boswell had been challenged by Fallon or someone else. Of course, that didn’t happen since it’s been nothing but talk of Latham’s massive fundraising haul for a year now.

    The timing of this is suspect given recent reports of the race’s closeness. I’ve always been more bullish on Boswell’s chances than most and am not terribly surprised to read that he can perhaps make a go of it even after prominent DSM Dems have made the rounds at Latham events. Fallon’s missive comes across as an covert attack by DSM pols who worry they may not have their shot in 2014.

    a lot fewer than the number of people who learned of the alleged job offer through a news report about Boswell’s lawsuit.

    They’ve been talking this up at TIR. I should believe that Fallon’s accusations would have been limited to Fallon’s email list?


  • incredibly bad.........

    Boswell, by filing this senseless suit, now makes this THE issue of the campaign through voting day.  Could any candidate be MORE foolish?

    BTW…we were to believe anything Boswell ever said after his deceitful ads the last several campaigns including this one?  

    Classless.  Completely classless.

    • Still grinding your axe!

      I know nothing first-hand about either Boswell or Fallon, but I have read enough Mirage posts over the years to know that disliking and bad-mouthing Boswell is an ongoing personal crusade.

      I can’t imagine your continuous cactus-sitting could make for a pleasant quality of life.

      • nothing to respect.......

        Until Boswell quits lying about his opponents “not being one of us” (BS), or “wanting to privatize social security”(more BS), or opponents “not wanting to vote for flood relief” (when he recently voted against it two times), or his self imposed term limits, or opponents enriching themselves on TARP bailouts, or when he is apparently (Fallon reports he has witnesses) lying to to the public here, or tells any one of his many more proven fibs, he will not garner any respect from me.

        Until then, the cactus is clearly far more appealing than the kool-aid you are drinking for this fake.

        • Clearly a far stretch


          “I know nothing first-hand about either Boswell or Fallon,”


          “… drinking [kool-aid] for this fake.”

        • Thoughts

          Fallon’s witnesses have credibility?  For all you know they could be Occupy activists.  The Social Security fib is something all Dems use and Zaun simply wasn’t as strong as we all thought he would be.  I like Brad Zaun I think he’s a credible guy, but he did slip up.

          Republicans used the TARP enrichment line against wealthy Democrats as well.   Bill Dix used it against Heckroth in Waverly to give you some more Iowa flavor.  

          Term limits are an issue where a conservative Republican is always going to disagree with a guy like Boswell.  

      • mirage was a big supporter

        of Brad Zaun throughout the 2010 campaign. It must have been frustrating to see Boswell win, especially in such an enormous Republican wave year when so many other D incumbents went down.

    • Latham's campaign rhetoric

      is even more dishonest, and has been ever since his 1994 campaign against “Massachusetts Professor” Sheila McGuire (the woman raised on a farm in western Iowa, educated at the University of Iowa and Iowa med school, who did a three-year post-doc at Harvard before returning to Iowa to open a clinic in Boone).

      Latham’s whispering campaign about McGuire supposedly being a lesbian also set new records for classlessness.

      I will talk more about Latham’s current campaign ads in a forthcoming post. Same old same old Republican playbook against Boswell.

  • Ed Fallon

    Ed Fallon is a man who just wants attention.  Leonard should have ignored his song and dance.  I make no bones about the lack of a plan Ed Fallon would have to revitalize rural economies and how awful I think he would have been as Iowa’s Governor.  

    His assault on prisons, corn syrup and other less than ideal industries may be admirable, but he is like CCI he offers absolutely no immediate alternative to these industries. His views would have devastated Lee County.  I guess just marching everyone over to the unemployment office in the name of compassion would be his only plan.  Yes, I understand he is pro-alternative fuels as well, but the man still would have been a disaster.  

    • I assume

      that this is subject to a House ethics investigation. For this reason alone, Fallon’s sniping is irresponsible. I don’t think much of its timing. If he’s been so concerned, he’s had, uhm, four years to make a formal complaint.

      Don’t pretend to know what actually transpired, but there’s one thing that’s obvious: the accusation is vindictive in nature.

      I guess just marching everyone over to the unemployment office in the name of compassion would be his only plan.

      Works best when you have other people supporting your ass.

      • More Thoughts

        Why in the world would Leonard Boswell hire Ed Fallon anyway?  I don’t think the people on Fallon’s e-mail list are going to go “Ed told me to vote for Boswell, I’m gonna do so.”  

        I don’t hear people talking about how great Fallon’s radio show is, how much pull does Ed really have in the state?  He simply doesn’t have that much power in my estimation.  

        If Fallon is a nominee in anyway statewide race against a Grassley, Northey, Reynolds or Branstad I will gladly vote for any of them over Ed.  Why?  Because he cares more about bike paths in Des Moines as opposed to legit, practical rural economic development.  

        • I think

          Why in the world would Leonard Boswell hire Ed Fallon anyway?

          the basic idea is that Team Boswell wanted to shut down a primary challenge (like the Helland/Highfill story). Helland was cleared of ethics violations but that was by “friendlies.” Imagine if Boswell wins — day one, Boehner is scheduling a house ethics investigation.  

        • I disagree

          that he had no plan for rural economic development other than opposing corporate welfare tactics. In his role as executive director of 1000 Friends of Iowa until 2004, he worked with people in communities all over the state supporting main street revitalization and other projects.

          But I don’t think we need to argue about it, because I doubt he is ever running for office again.

          I also doubt Boswell would have hired Fallon to work on his staff long-term.  

          • Well

            Yeah, obviously he would have wanted to shut down any primary challenge, but you don’t need to bribe a guy who you can beat. Even though most of the people that I know who didn’t like Fallon are “corporate” Democrats, I’m not sure that he didn’t ruffle the feathers of some of his progressive colleagues in the legislature either.  

            I don’t doubt Ed’s ability to come up with ideas, write great position papers and even be a good organic farmer.  The different organizations that he has worked with usually point out a problem, but they don’t actually correct the long term issue.  

            I also know that he’s very involved with policy matters that most people won’t touch, but he honestly lives in an alternative universe as far as practicality is concerned.

            People could dig into Fallon’s past associations as well, does he really want to be caught lying here?  

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