Thank God the elections are finally heading to the courts — and legal commentators.

Sen. Norm Coleman (R-Minn.) has sued Democratic opponent Al Franken for defamation over Franken’s television ads claiming that Coleman is the fourth most corrupt senator in Washington. This would actually make for an interesting case.

At issue is the statement that Coleman is the “fourth most corrupt senator in Washington” and that he lives “almost rent-free” in a Washington apartment. Normally, such claims are outside the scope of defamation because they are opinion and made as part of a political campaign. Coleman is a pubic official under New York Times v. Sullivan and must, therefore satisfy the high standard of showing actual knowledge of the falsity or a reckless disregard on the part of Franken.

In this case, Franken is relying on a specific report from the group Citizens for Responsibility and Ethics in Washington (CREW). CREW published a list of the 20 “most corrupt” members of Congress earlier this year. Notably, Coleman was not on the list, though he is part of Crew’s “most corrupt members” listing. Instead, he was one of four members to receive a “dishonorable mention” by the organization. While this is hardly a point of pride for any politician, there does seem a considerable difference between being one of the four most corrupt members cited and being on the “wannabe” list of corruption.

What makes this one so interesting on a legal level is that the statement is made as a fact based on a report that does not support it. It was a poorly crafted ad since Franken had a very good basis for challenging Coleman on ethics, particularly over his rental of a basement apartment at a radically reduced rate in political telemarketer Jeff Larson’s Washington home.

Rather than correct the ad, the Franken campaign is reasserting it as a true factual representation. Franken spokeswoman Colleen Murray insists that “[o]ur ads are factual and true, even if Norm Coleman doesn’t like being held accountable for his conduct.” The campaign also notes that Coleman has previously filed lawsuit during tough campaigns.

I do not have a horse in this race. I wanted to see Noble prize winner Peter Agre run and I believe that this would not be a close race if he was nominated by the Democratic party in Minnesota.

However, this is one lawsuit that could produce a substantive addition to the law in the area. Campaigns are not exempted from defamation rules, though statements made in the heat of a campaign are given considerable space for free expression. If Franken had simply accused Coleman of being corrupt, there would be no legitimate basis for a lawsuit in my view. The use of a specific “top four” fact and reference to this report creates a more difficult question. It does seem that factually this statement is not true if it is based on the CREW report. I agree with Franken’s campaign that Coleman should be chastised on the apartment deal. Indeed, Crew previously filed a complaint over the issue. He was recently the subject of another lawsuit alleging improper campaign donations from his wife’s firm, which the campaign also labeled as defamatory. However, while Coleman is not viewed as a particularly effective Senator, he is not viewed as one of the most corrupt by most observers– an intense competition with his colleagues.

I also agree that this lawsuit seems politically driven — as was the ad that led to its filing. Yet, it is not without a viable basis in defamation law.

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