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A Rare Victory in a Candidate-Candidate Libel Suit:

The Las Vegas Sun reports:

State Sen. Mike Schneider today agreed to pay $150,000 in punitive damages to settle a defamation lawsuit brought by his 2004 election challenger, Danny Tarkanian....

Schneider accused Tarkanian of setting up telemarketing companies that were later found to be running scams and that he turned "state's evidence" against the telemarketers to avoid being prosecuted.

Tarkanian practiced civil law until 1995 and admitted he helped set up the companies but had no involvement in the day-to-day operations of any of them. He said he was not aware that any of the companies were already engaged in illegal activity at the time that he helped to set up them.

Lief Reid, a former Deputy Attorney General, testified that Tarkanian was not part of the investigation into the companies....

Schneider testified that he relied on his investigator and campaign team for the veracity of the information....

My sense is that such lawsuits by political candidates are quite rare, for several reasons, including that:

  1. The coverage of the lawsuit necessarily repeats the original charges.

  2. It's hard to prove "actual malice" and therefore the plaintiff will often lose even if he's right on the substance.

  3. Such lawsuits are very expensive.

  4. Such lawsuits give the defendant an opportunity to conduct discovery that might unearth other things that the plaintiff might not want revealed.

Nonetheless, political candidates are as entitled to protection from false and defamatory statements of fact said with knowledge that they're false, or reckless disregard of the substantial risk of falsehood, as are other public figures. And presumably the jury concluded that the defendant did indeed know the statements were false, or recklessly disregarded that possibility.

Bruce Hayden (mail):
The interesting thing here politically is that Reid, whose father is a prominent Democratic politician nationally, testified apparently in favor of Tarkanian (a Republican), who lost the election anyway to Schneider (a Democrat).
8.5.2009 5:10pm
themighthypuck (mail):
Punitive damages? Are they characterized as such because the only damages that might be won would necessarily be punitive?
8.5.2009 5:17pm
Kazinski:

The interesting thing here politically is that Reid, whose father is a prominent Democratic politician nationally, testified apparently in favor of Tarkanian


What is he going to do, lie under oath. I don't know whether he was subpoenaed or not, but if he wasn't, he could have been.
8.5.2009 5:20pm
No law:
[P]olitical candidates are as entitled to protection from false and defamatory statements of fact said with knowledge that they're false, or reckless disregard of the substantial risk of falsehood, as are other public figures.


Why?

If there's any circumstances that ought to have the fullest protection for uninhibited, wide-open and robust debate—it's an election campaign.
8.5.2009 5:37pm
Bruce Hayden (mail):
What is he going to do, lie under oath. I don't know whether he was subpoenaed or not, but if he wasn't, he could have been.
And, as Bill Clinton found out, it is even worse when lawyers lie under oath.

I would almost expect Reid to have been subpoenaed, regardless of which side he may have preferred. My experience is that you pretty much have to subpoena lawyers to get them to testify, regardless, and Lief Reid is a very good attorney.
8.5.2009 6:01pm
JoshL (mail):

Why?

If there's any circumstances that ought to have the fullest protection for uninhibited, wide-open and robust debateā€”it's an election campaign.


Which is why the statement was "[P]olitical candidates are as entitled to protection from false and defamatory statements of fact said with knowledge that they're false, or reckless disregard of the substantial risk of falsehood, as are other public figures."

Those two possibilities aren't allowing for "uninhibited, wide-open and robust debate". I mean, it might open up a lot of debate to say "my opponent reads Mao's Little Red Book to his children as a bedtime story," but the odds are incredibly high that this statement is false and serves no purpose other than to tar and feather the opponent. In this lawsuit, the key issue was the allegation that the candidate

turned "state's evidence" against the telemarketers to avoid being prosecuted
, which was damaging to his campaign and patently false.


(Incidentally, my original made up statement, above, was Mein Kampf, but I decided to avoid the Godwin's Law implications in this particular instance).
8.5.2009 6:06pm
No Law:
... the odds are incredibly high that this statement is false....


The odds are incredibly high that the judge was appointed by an executive from one or the other of the political parties. The judge may even belong to a political party.

And the odds are incredibly high that the jurors are registered voters.

The election can decide who to believe.
8.5.2009 6:13pm
johnshade (mail):
In what dialect of English is the phrase "set up them" grammatical?
8.5.2009 6:49pm
Rusty Shackleford (www):

In what dialect of English is the phrase "set up them" grammatical?


That would be the dialect known as "Engrish," as in, "someone set up us the bomb"
8.5.2009 7:27pm
Malvolio:
In what dialect of English is the phrase "set up them" grammatical?
I don't think there's anything grammatically wrong with the phrase. Certainly, free-floating prepositions often stick to the verb -- don't you ever "screw up the attribution" or "kick off the project" or "throw down a challenge"? I don't know if "set up" is idiomatically in the same category but it isn't obviously wrong.
8.5.2009 10:01pm
Dave N (mail):
Also interesting in that Danny Tarkanian was a public figure before he ran for the State Senate--having been a basketball star at UNLV and the son of longtime UNLV basketball coach Jerry Tarkanian.
8.5.2009 10:53pm
Curt Fischer:
It's interesting to me that incentives the law has provided to candidates in an election.

How much is $150,000 relative to the cost of running your average NV state senate campaign? And am I correct in guessing that although Sen. Schneider is civilly liable to Tarkanian for his defamation, the people who were duped by his false defamations will have no recourse against him, at least not until the next election?
8.6.2009 12:45am
Dave N (mail):
Curt Fischer,

My undertanding is that in Las Vegas $150,000 is about the amount necessary for a State Senate campaign.
8.6.2009 2:10am
johnshade (mail):
"Set up them" is simply ungrammatical. A linguist would put an asterisk in front of the sentence. The rules for these phrases are different for pronouns than they are for nouns (which can indeed come after up), and logic has little to do with it. Try a few examples:

Please don't bring it up when my mother is here.
*Please don't bring up it when my mother is here.

(Substitute "her boyfriend" for "it" and either order works.)

Drink it up, it's good for you.
*Drink up it, it's good for you.

(Substitute "the medicine" for "it" and either works.)

He knocked her up.
*He knocked up her.

(Substitute "his girlfriend" for "her" and either works.)
8.6.2009 8:17am
neurodoc:
A little over a decade ago, we had a truly extraordinary one of these here in Montgomery County, Maryland. The aggrieved loser in the Republican primary for US Senate was really angry about the radio ads her opponent, a former senator from another state (TN), had run against her. She was an attorney/developer who had served on a zoning commision, and she was not the person you would most want to partner with, whether in business or life. She had been sued over a business deal gone sour, one of the claims being civil fraud. In her opponent's ads, an announcer was heard saying in a very stern voice, "RAA 'convicted' of fraud," then a loud clanking sound that made one immediately see in the mind's eye a jail door slamming shut. RAA sued, despite counsel not to do so, and not surprisingly lost.

She was so angry about the whole affair and her philandering physician husband, that she tried to hire a hit-man to murder the husband and the lawyer who had opposed her in the libel lawsuit, and her plan was to have at least one more attorney rubbed out later. That too went awry and she wound up doing jail time. (She also sued her ex- for medical malpractice, alleging that it was the Valium and other drugs he supplied her with that cause her to do the things she did, for which she argued she was not fully responsible. She won that one and was awarded $1.00)
8.6.2009 9:34am
NickM (mail) (www):
In 1994, I was involved in a State Senate campaign in CA where both sides filed libel lawsuits against the other - and both suits were reasonable to maintain.

The Republican challenger put out a mailer that said the Democrat incumbent was receiving 4 government pensions while sitting in office. That was false - he was receiving 3. The fourth (from a previous, nonconsecutive stint in the legislature) would have been illegal for him to take while serving. [The campaign consultant publicly admitted to having misread the incumbent's financial disclosure reports.]

Shortly thereafter, the Democrat incumbent put out several mailers calling the Republican challenger a "DEADBEAT" because he was contributing money to his own campaign instead of paying off his student loans. In fact, the challenger had never been delinquent on any of his student loans, and was paying them off according to the standard schedule.

Both lawsuits were dropped after the election.

Nick
8.6.2009 12:32pm
Eric P. Robinson (mail) (www):
I actually did some research on this on Tuesday, and was able to find a few cases:

Faxon v. Michigan Republican State Central Committee, LC No. 96-416693-AV (Mich. Dist. Ct. $150,000 jury verdict ____), aff'd, LC No. 96-416693-AV (Mich. Cir. Ct. ____), rev'd, 624 N.W.2d 509 (Mich. App. 2001), appeal denied, 639 N.W.2d 256 (Mich. 2001).

Taylor v. Skandalakis, No. ______ (Ga. Cir. Ct. settled Jan. 2000) (settled for $50,000, which was contributed to the Georgia Sheriff's Boys Ranch).
Article

Petrosino v. Calogero, No. __________ (N.J. Super. settled Dec. 2001) (settled for $15,000).
Article

Ulrich v. Shilling, LC No. 01-000148-NZ (Mich. Cir. Ct. $500 bench verdict 2001) (also awarding $2,780.45 in costs and attorney fees, and ordering a retraction), rev'd, 2003 WL 21540387, 2003 Mich. App. LEXIS 1662 (Mich. App. 2003) (unpublished).

Bennett v. Hendrix, No. 00-02520-CV-TWT-1 (N.D. Ga. $6.7 million jury verdict _____), judgment as a matter of law (N.D. Ga. order _____) (vacating jury verdict), aff'd in part and rev'd in part, No. 07-12314 (11th Cir. 2009).
Appellate decision

Boyce &Isley, PLLC v. Cooper. No. _____ (N.C. Cir. Ct. trial pending) (after several appeals involving pre-trial matters, case based on 2000 campaign literature was scheduled to go to trial on May 18, 2009, but was postponed).
Article 1 -- Article 2 (last two paragraphs)

Eric P. Robinson
Staff Attorney
Media Law Resource Center
8.6.2009 4:03pm
Rich Rostrom (mail):
It seems to me that a political campaign should not be a license to engage in discourse that would otherwise be libel or slander.

Let's say that Joe is a part-time state legislator and also a businessman in competition with me (we both own care dealerships). I run against him, and run a lot of "campaign ads" claiming that Joe has his mechanics pad repair bills, and substitute used and off-brand parts but bill for new OEM, and that Joe sells "lemons" and then evades warranty claims. I could have actors "portray" supposed victims of Joe's alleged dishonest practices. This could all be justified as addressing Joe's character.

Joe wins the election, but I don't care - I've ruined Joe's business.

Or let's say I'm a divorce lawyer and Joe married my client's ex-wife, who has custody of the kids. I gin up a campaign against him, and run ads in which he is described as an alcoholic, pr0n addict, and drug user. Joe wins the election, but I've blackened his character and my client wins custody of the kids.
8.6.2009 5:59pm

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