Sen. Norm Coleman Sues Al Franken for Defamation

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.

For the full story, click here and here.

41 thoughts on “Sen. Norm Coleman Sues Al Franken for Defamation”

  1. Mike,

    I totally agree that McCain’s experience during Viet Nam does not qualify him for leadership as President of the United States. He is using that experience in a way that I agree is wrong. I still cannot understand how who your dad is can make any moral difference during torture. We can claim neither glory, nor ill repute from our relatives or parents. We can only live our own life as best as possible and I hope well. I cannot see how there is justice to claiming otherwise.

    FFLEO,
    “Given the service of my father, my uncles, my brother’s son, and especially my brother’s ultimate sacrifice, I would have done anything honorably and physically possible to uphold the Codes of Conduct to which I solemnly pledged.” I agree with that statement. It has no bearing on whether one breaks under torture. I would not consider you a dishonor to this nation had you been tortured and broken. One can do everything in one’s power and still fail. Failure to try is something one can make a moral judgement on. Trying and failing under torture is not.

    I worry about the claim that people are dishonorable if they break under torture. It’s making torture O.K. as a starting point, something the cheneybush crowd certainly agrees with. Torture is against domestic and international law for real reasons.

  2. Jill,

    To answer your question about my natural father, he was career military, a WWII veteran, and taught college ROTC. My brother was a Green Beret (Special Forces) officer who was Killed In Action (KIA) in Laos at the time I was also serving in the military.

    I do not know how else to express the solemn oath a soldier takes other than you are pledging that you will sacrifice everything, including your life, for your fellow soldier, your country, and for all U.S. citizens so they are able to live in freedom to achieve greatness or simply to be able to correspond as we are now.

    Given the service of my father, my uncles, my brother’s son, and especially my brother’s ultimate sacrifice, I would have done anything honorably and physically possible to uphold the Codes of Conduct to which I solemnly pledged.

  3. Jill,
    I don’t have any argument with you about people who break under torture. I’ve certainly admitted that I would with little coercion.
    My problem is directly with McCain not only being called a hero, using it as a justification for his right to office and using it as a shield against criticism. That is my complaint and all of these tactics have been used by his campaign. They have made criticizing his experience as out of bounds, even though his experience and knowledge of the issues especially the economy and foreign relations are arguably those of a dilettante.

    As to my Father, I adored him and he was very intelligent,but he died when I was 18. I know he would have advised me to break rather than be tortured. However, he was a car salesman, McCain’s was the Commander of the Pacific Fleet.

  4. Mike,

    I agree that McCain should not run around calling himself a war hero. No one can know what kind of torture anyone experienced or demand that someone hold fast no matter what is done to them. There are so many valid criticisms of McCain. Holding him to a higher standard under torture doesn’t seem just. Breaking under torture isn’t dependent on loving/honoring your father or country. No studies of torture show that. In WWII there was one slight difference in whom the German’s had less success with–these were soldiers who had given the US army “trouble” before the Germans tortured them.

    I worry that those men and women with prominant parents who broke under torture, or anyone who did, will read what you and FFLEO are saying and think they are guilty. People do that to children who were abused. For example by clergy: “Well, why did you let that happen? Your dad’s a minister.” This takes the onus off the person who committed the crime and places it on the victim of the crime.

    Both of you have said you do not know if you would have broken or believe you might have. I believe you when you say you love this country (I don’t know how you feel towards your fathers). McCain while being tortured is no different than you or anyone else. Most people will break, only a rather small percentage do not. McCain as a candidate has many flaws but breaking under torture as a young man is not a flaw. That is why torture is a heinous crime.

  5. Patty C.,
    Thanks for the effort unfortunately I still can’t do it. This article below by Emptywheel at Firedoglake and the sources cited further explains my disdain for McCain. (Would you believe at one point in the 90’s I ran a large NYC computer operation, lucky to have great staff).

    http://emptywheel.firedoglake.com/2008/11/03/mccain-was-the-most-reprehensible-of-the-keating-five-and-he-hasnt-changed/#more-3008

    FFLEO,
    Couldn’t agree with you more and I respect your service, not as the current cliche, but as someone whose eyes mist up at times with love for my country and those brave enough to defend it. I am not one of them and sincerely believed during Viet Nam that I would have been killed going through basic training. Luckily for me I was 4f due to high blood pressure, which a lifetime of early and current heart problems bore out.

    Jill & Rafflaw,
    As I expressed above and in my original post I know for a fact that I would have succumbed prior to torture. However, that would have been my pragmatic mind, fear of being hurt and belief that anything I said would have no material effect on the war. I don’t criticize McCain for “breaking” as many did, but that does not make his survival heroic. I think, physical coward (at least where torture is concerned) that I am, that if my Father was Commander of the Pacific Fleet they would had to cut me up piece by piece rather than me dishonoring my Father. As FFLEO points out there were many, many people who did resist all of whom had much less riding on their confessions other than the Military Honor Code. Those who held out are to be rightly called heroes. Those who couldn’t we can understand and sympathize with, but they were not heroes.

    John McCain is not a hero. Disgracefully though, he has used his capture as a central meme detailing why he should be considered a man of honor. This is an abrogation and denial of the real sacrifices and heroism of some of our armed forces. This is all the actions of a dis-honorable and self-serving man. That lack of honor is further highlighted by the article I referenced above.

    Although I’ve already proudly voted for Barack Obama, I don’t write this put down of McCain as the result of an excess of partisanship. I’m old enough to be far more cynical about the machinations of our political system than to dislike someone because they hold different political views. I write this about McCain because I hate hypocrisy and loath those who would be so awash in it, that they probably don’t even realize their own lying.

  6. FFleo,

    Exactly as rafflaw stated. I have not and many of my closest family memebers have taken that oath and served on the ground in combat multiple times. Rafflaw is correct. Only a small percentage of people who are tortured are able to resist it. It is wrong to condemn the rest. It doesn’t matter who their father is or how wealthy (or poor) they are. This is blaming the victim. The person who tortured committed the crime. The person who approved and ordered torture committed a crime.

  7. FFLeo,
    My son has taken that oath, but I have not. My father took it in World War II and Korea. My brother took it in Vietnam. Notwithstanding the oath that all military members take, I cannot fault them for faltering under brutal physcial torture, nor could I fault them for faltering under brutal and intense pyschological torture. To say that every service member can successfully thwart the torture that our enemies and the U.S. employ is pie in the sky. I expect them to do their very best, but I understand that every man and woman serving us has their limits.

  8. Jill and/or rafflaw,

    Have you ever sworn an oath as a member of the military? Most of us who have taken oaths to Codes of Conduct do so with complete reverence, honor, and without reservation.

    Below are the pertinent Articles of the Code of Conduct delineating a “set of rules that American soldiers were expected to follow if captured.” A PBS link is appended.

    http://www.pbs.org/wgbh/amex/honor/filmmore/ps_code.html

    The CAPS were original from the article.

    Article III.

    IF I AM CAPTURED, I WILL CONTINUE TO RESIST BY ALL MEANS AVAILABLE. I WILL MAKE EVERY EFFORT TO ESCAPE AND AID OTHERS TO ESCAPE. I WILL ACCEPT NEITHER PAROLE NOR SPECIAL FAVORS FROM THE ENEMY.

    Article IV.

    IF I BECOME A PRISONER OF WAR, I WILL KEEP FAITH WITH MY FELLOW PRISONERS. I WILL GIVE NO INFORMATION OR TAKE PART IN ANY ACTION WHICH MIGHT BE HARMFUL TO MY COMRADES. IF I AM SENIOR, I WILL TAKE COMMAND. IF NOT, I WILL OBEY THE LAWFUL ORDERS OF THOSE APPOINTED OVER ME AND WILL BACK THEM UP IN EVERY WAY.

    Article V.

    WHEN QUESTIONED, SHOULD I BECOME A PRISONER OF WAR, I AM REQUIRED TO GIVE MY NAME, RANK, SERVICE NUMBER, AND DATE OF BIRTH. I WILL EVADE ANSWERING FURTHER QUESTIONS TO THE UTMOST OF MY ABILITY. I WILL MAKE NO ORAL OR WRITTEN STATEMENTS DISLOYAL TO MY COUNTRY AND ITS ALLIES OR HARMFUL TO THEIR CAUSE.

  9. FFLEO,

    Posturing as a war hero is not acceptable. Being called dishonorable or a coward for breaking under torture is not acceptable either.

  10. McCain: A *bandy rooster* posturing as a ragdoll puppet action hero figure.

    As a former military serviceman during the Viet Nam Era, I consider Mr. McCain a pathetic misrepresentation of his appellation as a “war hero”. He broke while others died before they would give any information that might harm their fellow soldiers or aviators. As an officer, McCain had an even higher oath to uphold.

    I do not know if I could have endured unspeakable measures of torture, as occurred in Mr. McCain’s situation, to uphold the oath of non-collaboration with the enemy. I, of course, would like to think I could have endured since I strove to achieve the best I could do as a serviceman while receiving honor graduate status for almost every military endeavor I was given, including top physical fitness awards after ‘boot camp’.

    Air Force Capt. Earl G. Cobeil, and others who died at their captors’ hands, and those who lived through the torture but who never ‘talked’, are the exemplary heroes worthy of admiration for their courage; however, McCain denigrates their honor with his *bandy rooster* posturing as a ragdoll puppet action hero figure. I have nothing but disdain for McCain.

    To close in a positive vein, LTC Cobeil was posthumously awarded the Air Force Flying Cross. However, given the potential number of lives he preserved by not collaborating with the enemy, his gallantry and allegiances to his oath and country justified the additional recognition of the Medal of Honor that he never received.

    Conservative 30-year registered Republican for Obama/Biden

  11. Mike, a quick old fart computer lesson:
    You inadvertently copied the ‘S’ from RS (Rolling Stone)

    A link should begin with ‘http’, for starters, which can be accomplished by using your pointer to highlight the URL which you can either then ‘grab’ and ‘drag’ by holding your pointer down, and
    then release the link where you want it in your document or on your Desktop.

    Or, highlight the URL, go to ‘Edit’, choose ‘Copy’ by clicking, then ‘Paste’…

    Here, JT’s software will do the rest.

    http://www.rollingstone.com/news/coverstory/make_believe_maverick_the_real_john_mccain

    McCain’s own account of his POW experience, particularly regarding the offer for early release etc is certainly much more romantic than the account given in this interesting RS article. Thanks for referencing it.

  12. I’d like to expand on Jill’s remarks above. The prisoners at the Hanoi Hilton were airmen shot down over North Vietnam. They were volunteers, often graduates of our service academies & members of elite military units known for their esprit de corps. If 80% of these men broke under torture, then John McCain is in good company.

    I don’t recall the military prosecuting any of these POW’s after their return. Perhaps this was a cynical PR move: to have done so would have been a major embarrassment in the wake of Vietnam. On the other hand, maybe the military has a better informed & more charitable understanding of victims of torture.

    In support of the later view, I would point out that: 1. Some of the fiercest critics of the Bush Administration’s torture policies have been members of our military. 2. Numerous JAG officers defending Guantanamo inmates have jeopardized their own careers by protesting the admission into evidence of confessions extracted under torture.

    Knocking McCain’s war record is just as bad as the Swiftboating of Kerry.

    I also take exception to the assertion that McCain has never exhibited leadership. I have no use for the McCain of 2008; but I do recall his role in drafting & passing the McCain-Feingold Bill.

    I understand partisanship, but I do not think it should take the form of false criticisms of your opponent.

  13. Here is some information on the torture of our people at the hands of the North Vietnamese. I categorically oppose torture and cannot hold anyone accountable for what they say while being tortured. I oppose what happened to our people then and I oppose this govt.’s torture of people now. WARNING –THE FOLLOWING CONTAINS GRAPHIC DESCRIPTIONS OF TORTURE.

    (EXAMPLES) Alvarez, who ejected not far from shore, was captured by armed Vietnamese in a fishing vessel. By Aug. 11, he had been taken to Hanoi’s notorious Hoa Lo Prison, a turn-of-the-century French-built facility with thick two-story concrete walls known in Vietnamese as the “fiery furnace.” Rats infested his cell. Food, consisting of animal hooves, chicken heads, rotten fish, and meat covered with hair, was sickening.

    The complex, ringed with guard towers, soon became known as the “Hanoi Hilton,” with sections known as “Heartbreak Hotel,” “New Guy Village,” “Little Vegas,” and “Camp Unity.” The complex was so formidable that not a single US serviceman managed to make an escape during the entire war.

    Navy Lt. j.g. Rodney A. Knutson, a radar intercept officer captured with pilot Lt. j.g. Ralph E. Gaither when their F-4 was shot down on Oct. 17, 1965, got an early taste of what lay ahead. His captors bound his arms so tightly that they lost circulation. He was denied food and water. He was beaten. When he still refused to cooperate, his torturers moved on to a new, more sinister method-the “rope torture.” Knutson was subjected to this technique on Oct. 25, 1965. The prisoner was forced face down onto a bunk with his ankles in stocks and a rope tied at his elbows, with the rope then pulled up to run through a hook in the ceiling. The guard hoisted the prisoner off the bunk so he could not ease any of his weight-producing extreme pain and constricting breathing.

    USAF Capt. Konrad W. Trautman suffered the rope torture on a dozen occasions. “The pain is literally beyond description,” said Trautman, who was shot down and captured Oct. 5, 1967. “After about 10 or 15 minutes in this position, tied up so tightly, your nerves in your arms are pinched off, and then your whole upper torso becomes numb. It’s a relief. You feel no more pain. … However when they release the ropes, the procedure works completely in reverse. It’s almost like double jeopardy-you go through the same pain coming out of the ropes as you did going in.”

    Air Force Capt. Earl G. Cobeil, captured on Nov. 5, 1967, feigned mental illness, as did some other POWs, to protect himself from the experimental brainwashing carried out by a dreaded Cuban interrogator. The Cuban, known among POWs as “Fidel,” convinced that Cobeil was faking, mercilessly beat him day after day. One day, Cobeil refused to bow. For the offense, Cobeil on May 21, 1968, was trussed in ropes overnight and mauled for 24 hours straight. Fidel, enraged, emerged from one torture session to shout to prisoners within earshot: “We’ve got [a POW] that’s faking. Nobody’s gonna fake and get away with it. … I’m gonna teach you all a lesson. … I’m gonna break this guy in a million pieces.” Cobeil was last seen in the fall of 1970 and did not return with the other POWs in 1973. The Vietnamese later reported Cobeil had died in November 1970; his remains were returned March 6, 1974.

    One prisoner estimated that communist torturers exacted statements of some sort from 80 percent of the POWs. As soon as they recovered from the physical trauma, the prisoners faced the torment of having collaborated…

  14. David H.,
    I agree with some of your characterizations, but the entire Republican party is not racist or comprised of halfwits. The small minority of people in the Republican party that have contolled it and the country for the last 8 years are the worst of the worst. The only way people will be laughing at them in the future is if the new majority actually repairs the damage done to the Constitution and begins to govern for us and not for the corporation. I will be ecstatic if Obama wins on Tuesday, but I will be wary of what progress they are actually making. Once Obama is elected and in the White House, the Senate will have to grow a pair in order to redo the FISA to actually make the Executive Branch follow the law. And torture of any kind by any agency of the U.S. government must be stopped immediately.

  15. Dunno why I’m up at this time. Mike, I get that Glen was spouting talking points, but your response wasn’t much better; it also read like a laundry list of talking points. And #5 and #6 went overboard. Just watch this Letterman clip: http://www.youtube.com/watch?v=XjkCrfylq-E

    On a separate note, I’d be interested in hearing what JT has to say about the mixed conservative reaction to Heller. http://www.nytimes.com/2008/10/21/washington/21guns.html?hp

    Finally, do you guys and gals think Obama will gut the war on drugs? Since ’04, his position has apparently evolved from decriminalization of pot, to instructing the Justice Department to not waste resources on its enforcement, to hesistanly endorsing its use for medical/palliative purposes. http://www.youtube.com/watch?v=9flhDmz7Kwo

  16. Hey liberal-hating, right-wing idiots about to vote against your own self-interest — enjoy Monday! It’s the last day anyone will listen to anything you say. Your president is a lame duck, your candidate is a douchebag, your party comprises the worst this country has ever produced and you redneck racist halfwits will soon be outnumbered by non-whites in the USA.

    In other words, have fun spending the rest of your life as a member of an ever smaller minority of bitter, ignored, unemployed laughingstocks. The rest of us will enjoy pointing and laughing at you backward, inbred donkeys. Sayonara!

  17. Whooliebacon,
    With all do respect, there is no bigger backer of Obama than myself, but McCain’s actions in Vietnam were honorable and heroic. Theh only thing we can ask of our service men and women is for them to do their best. Under such horrific circumstances, just surviving is a real achievement. The problems with McCain as a politician and a Presidential candidate have nothing to do with his service in Vietnam.

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