Implied Falsehoods in Political Campaign Ads: Opinions or Facts, and a Bork/Scalia Split

Ryan Koopmans at On Brief has an excellent post discussing Bertrand v. Mullin, a defamation case that the Iowa Supreme Court recently heard. The case arises out of a political campaign, and involves two political candidates. The plaintiff is arguing that the defendant's campaign ad implied a number of falsehoods regarding the plaintiff's role in a business.

Koopmans discusses the legal issues involved:

The Iowa Supreme Court could decide the case on several different grounds. The parties are arguing about jury instructions, whether the defendants made proper objections, and whether Bertrand proved that Mullin had the malicious intent that the Constitution requires in a defamation case like this one. 

But the threshold question—and perhaps the most interesting one—is whether the First Amendment even allows a politician to sue for implied falsehoods like this that happen during the throes of a campaign. If the jury’s judgment in this case is affirmed, will it chill protected political speech? Will well-heeled candidates use lawsuits (and the costs that go with them) to stifle the up-start and low-budget competition? 

Or will the jury’s judgment of this offensive ad properly curb what many believe to be a degrading political climate? And will that encourage more qualified candidates to put their name on the ballot?

The rest of Koopmans's post is a detailed, concise summary of the Bertrand case, and the history of courts' treatment of opinion statements in defamation cases. Central to this history is the case, Ollman v. Evans, where an en banc DC Circuit court held that an op ed criticizing a professor's appointment was not defamation. Then-Judge Antonin Scalia and Judge Robert Bork were both involved in the decision, and split on the outcome, with Bork deciding in favor of the defendants, noting that the plaintiff's political activism and statements meant that he should have expected harsher criticism. Scalia dissented, arguing that there was no reason to treat politically-charged cases differently, since existing First Amendment jurisprudence provided enough protection.

Near the end of his dissenting opinion, Scalia criticized the evolution of the judiciary's approach to constitutional doctrine in light of changing modern circumstances:

I distrust the more general risk of judicial subjectivity presented by the concurrence's creative approach to first amendment jurisprudence. It is an approach which embraces "a continuing evolution of doctrine," not merely as a consequence of thoughtful perception that old cases were decided wrongly at the time they were rendered and not even in response to a demonstrable, authoritatively expressed development of public values; but rather in reaction to judicially perceived "modern problems," which require "evolution of the law in accordance with the deepest rationale of the first amendment," . . . It seems to me that the identification of "modern problems" to be remedied is quintessentially legislative rather than judicial business — largely because it is such a subjective judgment; and that the remedies are to be sought through democratic change rather than through judicial pronouncement that the Constitution now prohibits what it did not prohibit before.

. . . 

[I]t is frightening to think that the existence or nonexistence of a constitutional rule (the willfully false disparagement of professional reputation in the context of political commentary cannot be actionable) is to depend upon our ongoing personal assessments of such sociological factors. And not only is our cloistered capacity to identify "modern problems" suspect, but our ability to provide condign solutions through the rude means of constitutional prohibition is nonexistent. [citations omitted]

It will be interesting to see how the Iowa Supreme Court decides this case -- particularly when it comes to the opinion vs. statement of fact argument and the political context of the controversy.