Settle political claims at polls, not in court

Tuesday, May 29, 2012

Political speech — the most protected form of speech under the First Amendment — does not need its day in court, even if competing North Carolina gubernatorial campaigns would have it so.

Democratic and Republican groups filed legal complaints last week over a television commercial involving GOP nominee Pat McCrory’s supposed ties to a Charlotte real estate and lending business while still serving as mayor.

McCrory claims he has been defamed. He and his supporters are reported to have asked the Federal Communications Commission to review the commercial, and to have threatened lawsuits against TV stations that air the commercial. The ad was produced by a group, N.C. Citizens for Progress, supporting Democratic nominee Lt. Gov. Walter Dalton. It was paid for by the Democratic Governors Association, according to an Associated Press report.

For those outside North Carolina, the particulars of this advertising flap don’t matter as much as the notion of moving politics into a courtroom, campaigns onto the witness stand and political maneuvering into television newsrooms.

Though McCrory supporters cite state law that allows politicians to collect damages for false advertising aimed against them, the nation’s Founders created — even as they experienced — a rough-and-tumble political world where allegations, insults and worse were the norm. A free press exists, in good measure, as part of an information structure where citizens are free to weigh a candidate’s merits and demerits, as evidenced by the widest possible range of sources. Government should not place its thumb on the campaign scale.

Defamation laws are on the books to provide a means to restore a reputation unfairly damaged by a false claim and not, as some may suppose, to punish or expose the source of the falsehood. Varying somewhat from state to state, defamation laws are rooted in court decisions and American history that provide for “truth” as an absolute defense. But these laws play no role in parsing claims of political campaigns — candidates can immediately and publicly challenge anything they see as negative.

Courtroom dramas and reality shows are a staple of prime-time programming and reruns – from “Law & Order” to “Judge Judy.” But lawsuits as campaign tactics?  Seems more likely to create Law & Disorder.

Consider this statement by a lawyer for the group that produced the North Carolina commercial: “We will move forward with discovery and plan to depose McCrory and his associates before November 2012, to answer questions about his business relationships and his contact with public officials.”

Holding a public official accountable for alleged misconduct only until ballots are counted reduces enlightened public interest to a mere campaign tactic. It’s just something in a consultant’s bag of tricks to garner public attention and distract a component.

Courts have been reluctant to enter such politically motivated legal tussles, reserving libel and slander actions more for those truly wronged, as a means for those unable to counter false information any other way.

It’s hard to adjudicate campaign claims in court or in a government agency. You can’t necessarily complete a case within an election cycle, for one thing. And what’s the remedy if a falsehood is found? Should election results be overturned if a candidate is later shown to have used false statements as part of a winning campaign? How would a judge or jury determine if one falsehood was more important in a campaign’s outcome than any other statement in warping voter opinion?

One lawsuit involving active candidates does not disrupt our legal system. But a slew of them would create a revolving door of unending campaigns that go on into appeals and counter-lawsuits long after the election results. Lawyers and political consultants are the only likely winners there — certainly not the public.

Tarring a political opponent’s reputation always has been a fact of political life. Candidates in the Internet era have more tools to combat negative claims than ever before, to say nothing of the relaxed spending environment for groups that want to enter the political marketplace with a compliment or a complaint.

The place to settle the validity of campaign claims or tactics — and to take the measure of those who make or counter them — is the ballot box, not the jury box.

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