Murtha Must Testify in Defamation Case

In what is shaping up to be a very interesting defamation case, a federal judge has ordered Rep. John Murtha to testify in a defamation lawsuit filed against him for commenting on an alleged Iraqi massacre. Murtha (D-Pa.) , a former Marine. accused Marines involved in the killings at Haditha of particiipating in “cold-blooded murder and war crimes.” Frank Wuterich, a Marine sergeant involved in the incident, has sued Murtha for libel and invasion of privacy over his comments. Usually a member of congress is absolutely privileged (or protected) under the speech and debate clause of the constitution. On the floor of the House, Murtha can say most anything about anyone — within the rules of the House. Outside of Congress, however, courts have historically been more reluctant to recognize an absolute privilege. That seems to be the thrust of the comments made by U.S. District Judge Rosemary M. Collyer: ‘You’re writing a very wide road for members of Congress to go to their home districts and say anything they choose about private persons and be able to do so without any liability. Are you sure you want to do that?” Collyer said, adding later, ”How far can a congressman go and still be protected?” This could be an precedent setter in the making. Of course, truth is a defense in defamation even without the privilege. Moreover, courts are divided on so called group libel cases. Either way, it is going to be interesting.
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11 thoughts on “Murtha Must Testify in Defamation Case”

  1. Mr. Long:

    I am not concluding that the marines or Mr. Murtha are at fault. That is why we have legal proceedings and investigations. My failure to say allegedly is not a retrospective review, just an oversight. It may have been a massacre and it may not have been a massacre. This website allows me to communicate interesting legal issues to my students and a few non-students. This is an interesting defamation question due to the status of Mr. Murtha as a member of Congress. Both sides in the controversy deserve presumptions and procedural rights accorded to the accused in criminal and civil cases.

  2. Mr. Turley, thank you for your restropective insight.
    I’ll have you know it almost cost me $20, so please visit Mr. Allender’s website for at least as long as $20 would keep you interested, should you be of a mind to do so.
    Or, if you have a few minutes more, please spend $100 worth of your time, of which I will have paid for in full to support these Marine’s right to a fair and impartial hearing before you have read this note.
    Sir, these men ARE innocent of any war crimes, I am convinced of this.
    I have done my due diligence over very many months, and there is no rational reason to continue to persecute these Marines.
    If you choose to fully invesitigate this case, you will become an advocate for the accused.
    No one who has done so has reached a disimilar conclusion.
    Again, thank you for your consideration.

  3. Thank you, sir, for your response.

    If I ever ran into you at a cocktail party, I intended to tell you how much I admired your work on the Petty Officer Daniel King case. But since you have this forum, I’ll say it here.

    Your defense of Petty Officer King was magnificent. Thank you for your service to our country in exposing abuses by NCIS in that case.

  4. First, thanks for the note on the typo. I have corrected it and added alleged on the massacre reference. You are quite right that we should be careful in such language. Second, it was my automatic correcting software that I think slipped here with committing rather than Freud. Either way, your point is well taken, Bruce, and I appreciate your taking the time to send it. My apologies.



  5. Mr. Turley, in your 1st sentance you refer to “committing on an Iraqi massacre”.
    I don’t take issue with the “committing – commenting” slip, unless of course if it is a freudian slip, as in “The Marines “comitted” a “massacre”, in which case two slips in such close proximity would belay a determination of guilt, don’t you think?
    There is a reason the cases against these Marines have been falling apart like weathered playing cards. It’s because they are innocent.
    The investigation Murtha reffered to that supposedly condemned these Marines had not even started when he appeared as a guest on numerous talk shows to bear false witness against the Marines of 3/1.
    Please do some more research on this case.
    It is always interesting to hear educated opinions, and it would be refreshing to hear an objective one as well.
    Describing the Marine’s response to a city wide ambush as a “massacre” is a very long way from being objective.

  6. All excellent points, David. Indeed, the reference to such extrinsic sources as briefings can move a matter outside of the realm of opinion. I represented Eric Foretich in the notorious Elizabeth Morgan case and successfully struck down a law targeting my client. At the time, we were considering defamation actions against members, but they studiously avoided making the comments off the floor. While Murtha may lack the constitutoinal protection, he will still be able to argue that he was characterizing his view or opinion. He can also cite to various reports or conversation as the equivalent to briefings. It will be a tough case and one that could turn on the willingness of the Court to order robust discovery.

  7. Mr Turley,

    To date, charges have been dismissed against four of the original eight Marines. The exonerated Marines will reportedly also file suits which will make things even more difficult for Murtha.

    Regardless of the number of Marines who eventually file suit against Murtha, it seems to me he has two major problems.

    First, Murtha declared the Marines guilty of murder not once but multiple times, often in TV interviews from his campaign headquarters in Johnstown, Pennsylvania. He went far beyond a reasonable comment about policy.

    Secondly, Murtha never once used the word “alleged”. And he simply couldn’t have known for certain what he claimed to know.

    Murtha’s assertions about briefings from “the highest levels in the military” turned out to be false. It would seem that he knowingly made false claims.

    If you were bringing this suit against Murtha, I wonder where your focus would be?

    Thank you.

  8. The New York Times standard applies to a public figure or public official who sues — requiring proof of actual knowledge or reckless disregard of falsity under the actual malice standard. It does not when it is the public official who is being sued by a citizen. One can debate whether Wuterich is a public figure, but it is doubtful. You second point, however, could prove vital. There may be truth as defense here. Moreover, Murtha will argue that he was giving his opinion on a matter of public policy.

  9. Hello Professor!

    I am a little confused by this case going forward.

    1) In order to prove libel, doesn’t actual malice have to be proven? Wouldn’t Wuterich have to prove that Murtha had knowledge that the information he was talking about was patently false?

    2) Isn’t Wuterich putting the cart before the horse? He hasn’t been found innocent of the charges yet. If he is found guilty, wouldn’t the point of his defamation case be moot?

    It seems like a roll of the dice on Wuterich’s part on both points.

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