The Iowa Supreme Court heard oral arguments yesterday in an appeal of Republican State Senator Rick Bertrand's defamation lawsuit against his 2010 opponent, Rick Mullin, and the Iowa Democratic Party. Des Moines attorney and law blogger Ryan Koopmans live-tweeted the hearing, and Mike Wiser and Grant Rodgers published summaries.
We'll know the verdict within a few months, but I've posted some thoughts and predictions below.
I will be shocked if the court does not overturn the verdict. Decades of case law support a high bar for any public figure claiming defamation (libel or slander). Moreover, the controversial ad did not contain any false statements. Rather, the district court judge who affirmed the original verdict while reducing the damages owed to Bertrand found that through "implied libel," a series of accurate statements could give viewers a misleading impression. By that standard, dozens of negative political commercials could spawn litigation during every election cycle. But courts all the way up to the U.S. Supreme Court have repeatedly held that even false political advertising is protected under the First Amendment, guaranteeing free speech.
Before yesterday, I would have predicted a unanimous Iowa Supreme Court verdict overturning the compensatory damages awarded to Bertrand and rejecting his claim for punitive damages. But during the oral arguments, Justice Thomas Waterman sounded sympathetic to the argument that "good people" would be reluctant to run for office if the Supreme Court ruled against Bertrand. Waterman also wondered whether affirming the original verdict would encourage people to be more careful when crafting attack ads.
Somehow I doubt that Waterman, who contributed $7,500 to Governor Terry Branstad's 2010 campaign, would be as sympathetic to a lawsuit from former Governor Chet Culver seeking damages for false statements repeatedly broadcast in Branstad's television commercials.
But I digress.
After listening to the oral arguments, Koopmans had the impression that Waterman leaned toward Bertrand's side, while Chief Justice Mark Cady leaned toward the position that affirming the verdict might suppress political discourse and open the door to a wave of lawsuits based on campaign ads. The other justices who will decide the case are David Wiggins, Daryl Hecht, and Bruce Zager. Two justices recused themselves. Justice Edward Mansfield is a former law partner of Mark McCormick, who represented the Iowa Democratic Party and Mullin. Justice Brent Appel has had past professional dealings with the IDP and its attorney Steve Wandro; in addition, his wife Staci Appel was a Democratic state senator during the 2010 campaign.
Since being appointed to the high court in 2011, Waterman has almost always ruled the same way as Mansfield. Without Mansfield participating in deliberations this time, Waterman may well embarrass himself by filing an opinion at odds with many previous rulings on defamation and political speech.
Final note: Mark McCormick is a former Iowa Supreme Court justice, but none of the current justices served on the high court with him. I completely agree with his comment yesterday that Bertrand's lawsuit should never have gone to a jury.
Any relevant comments are welcome in this thread.