Iowa Supreme Court dismisses defamation case based on 2010 political ad

Today the Iowa Supreme Court unanimously dismissed a defamation case filed by Republican State Senator Rick Bertrand over a 2010 negative television ad. You can read the full ruling here (pdf). I’ve posted a few excerpts below.

The Iowa Democratic Party ran the ad on behalf of Democratic candidate Rick Mullin shortly before the 2010 general election. Bertrand immediately filed a defamation lawsuit, in what I assumed was a stunt to change the media narrative. However, he pursued the case after winning the Iowa Senate race. In 2012, a jury decided in favor of Bertrand and awarded him $231,000 in damages. Later, a district court judge reduced the damages to $50,000 but determined that the tv ad constituted “implied libel.” The judge concluded that several statements in the commercial, though technically accurate, created a misleading impression about Bertrand. Both sides appealed to the Iowa Supreme Court. Mullin and the Iowa Democratic Party asked the justices to overturn the original verdict, while Bertrand defended his libel claim and objected to the damages being reduced.

I always expected the verdict to be overturned on appeal, because of extensive case law supporting strong protections for political campaign speech, as well as a high bar for any public figure claiming defamation (libel or slander).

Chief Justice Mark Cady cited many judicial opinions in his ruling, joined by Justices Thomas Waterman, Daryl Hecht, Bruce Zager, and David Wiggins. Justices Edward Mansfield and Brent Appel recused themselves from this case for reasons Bleeding Heartland discussed here. During the oral arguments in January, some observers thought Waterman sounded sympathetic to Bertrand’s attorney–which goes to show comments made during oral arguments don’t necessarily reflect the way a judge will decide a case.

This morning, Bertrand told the Des Moines Register, “The Iowa Supreme Court failed the people of Iowa and they failed the nation today. They did not show the courage to really say no to lies and corruption in politics.” Iowa Senate Majority Leader Mike Gronstal released the following statement: “We are pleased with the decision by the Iowa Supreme Court. The decision affirms our original position: the communication in question was factually accurate and protected free speech.”

Pages 2 through 7 of Justice Cady’s ruling describe the background facts of the case and previous court proceedings. His discussion of defamation law begins on page 8.

Under the actual malice prong of a public official defamation claim, the plaintiff bears the burden of showing actual malice by clear and convincing evidence. […] We have characterized this burden-in the context of showing reckless disregard for the truth-as “substantial.” […]

The burden to establish actual malice was deliberately set high by the First Amendment protections recognized in New York Times. Consequently, the New York Times standard defines a crucial exception to ordinary defamation rules. This exception is based upon a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

From page 11:

At its core, the First Amendment guarantee “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” […] Consequently, constitutional protection for political speech in the context of a campaign extends to “anything which might touch on an official’s fitness for office.” […] Understandably, the range of private conduct that affects an official’s fitness for elective office can be broad. “Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.”

A statement is made with actual malice when accompanied by “knowledge that it was false or with reckless disregard for its truth or falsity.”

A technical discussion follows on legal definitions of “malice” and “reckless disregard.” Cady summarizes the main arguments brought by Mullin and Bertrand on pages 14 through 16. Cady explains on page 17 why evidence suggests Mullin and the Iowa Democratic Party did not that Bertrand never sold the drug mentioned in the commercial. The following pages analyze Bertrand’s other claims regarding alleged malice and disregard for the truth. For each point, Cady cites multiple court rulings that undermine Bertrand’s case. Political speech is highly protected. That a political message is designed to diminish a rival candidate’s reputation is not proof of malice in the legal sense. The key finding comes on pages 26 and 27:

Overall, we conclude the evidence failed to establish actual malice. The failure to write the advertisement in a way to avoid the false implication in this case may have been negligence, but it did not rise to the level of reckless disregard for the truth. See McCarney, 239 N.W.2d at 156. It is the obligation of the courts to carefully review the evidence in each case to make sure the high standard of proof in a defamation action by one political candidate against another political candidate is met. The evidence in this case failed to support a high degree of subjective awareness of falsity needed for a public official to recover for defamation.

The result of this case is not to imply actual malice cannot exist within the rough and tumble Wild West approach to negative commercials that have seemingly become standard discourse in many political campaigns. Protection from defamatory statements does exist and should exist, but the high standards established under the First Amendment to permit a free exchange of ideas within the same discourse must also be protected. Among public figures and officials, an added layer of toughness is expected, and a greater showing of culpability is required under our governing legal standards to make sure the freedom of political speech, even when it sounds like speech far removed from the dignity of the office being sought, is not suppressed or chilled.

While the Constitution has delivered the freedom of speech to all with just a few simple words, the history and purpose of those iconic words are immense and powerful, and have solidified a long-standing right for people in this country, including public officials, to criticize public officials. Of course, this does not mean greater civility in public discourse would not better serve democracy. Moreover, no right is absolute. Nevertheless, the protective constitutional line of free speech in the arena of public officials is drawn at actual malice. Within this arena, speech cannot become actionable defamation until the line has been crossed. It was not in this case.

IV. Conclusion.

We conclude the record failed to support sufficient evidence of actual malice. Bertrand failed to meet his burden to prove the actual malice element of defamation. Accordingly, we need not address the other issues raised on appeal. The judgment must be reversed and the case dismissed.

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