There is an interesting defamation case coming out of a race in North Carolina. GOP candidate Eldon “Buck” Newton is claiming that Sen. A.B. Swindell (shown left) and the Democratic Party knowingly made misleading statements about him in a campaign mailer in the race for the 11th Senate District.
The flier told voters that in 1990 Newton was charged with eight counts of drug-related crimes. However, Newton was the victim of a mistaken identity by police and the charges were dismissed. The police officer involved in the operation was later relieved of his duties.
Newton is now seeking punitive damages and wants a temporary restraining order and a preliminary injunction. He also wants a rare order where the court would force his opponent to send a retraction to voters — presumably before the election.
State Democratic Party Executive Director Andrew Whalen insists that the flier was factually true because Newton “was indicted by a grand jury of his peers four times for selling illegal narcotics to an undercover officer. He has still not explained how a police officer could buy illegal drugs four times from a man he thought was Buck Newton.”
It will come down to the actual language of the mailer. The publication stated that “[o]fficial court documents show Eldon ‘Buck’ Newton was arrested on 8 felony drug counts, including selling cocaine.” It then showed a picture of a criminal record check. That statement may be largely true and “truth is a defense” to defamation. However, such statements can still produce false impressions through the omission of information as well as a “false light” claim in states recognizing such claims. Moreover, Newton insists that he was never actually arrested. He was a college student at the time.
The Supreme Court in New York Times v. Sullivan adopted a higher burden of proof for defamation for public officials (and later for public figures). Newton would fall under that standard and have to show actual malice (knowing falsehood or reckless disregard of the truth).
Notably, the Court believed that most false statements can be answered in the court of public opinion and that it is important to allow citizens to air complaints about public figures. In the opinion, the Court quoted Judge Learned Hand in United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943), that the First Amendment
“presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all.”
Those public officials and public figures, the Court insisted, have the unique and enhanced ability to respond to such claims. The Court sought to protect even bad speech as a way to protect free speech in general: “public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
This case could create some important precedent. Here you have not a citizen but a public figure accusing a public official. On the other hand, courts are particularly reluctant to intervene in political campaigns or to force candidates to send material to voters. Negative campaign ads are an unfortunate reality of American politics. In this case, the Democrats can claim that the statement was factually true even if incomplete.
Yet, campaigns do not have any special license to commit defamation and the flyer clearly could have left a false impression with voters by omitting the outcome in the case.
As a straight matter of common law, allegations of criminal conduct have long been recognized as per se slander where damages are presumed.