Klacik became a national figure when she ran to finish the term of the late Baltimore-area Democratic Rep. Elijah Cummings, who died in October 2019. She also spoke at the 2020 Republican National Convention and received former President Donald Trump’s endorsement. She lost the special election to Kweisi Mfume in April 2020, who garnered nearly 72% of the vote.
The focus of the Complaint is a June 22, 2021 publication of a forty-four-minute video from Owens’ Instagram account. On the video, Owens states that she carried out an investigation with unidentified sources who alleged that Klacik “used campaign money to do cocaine” and that she may have worked as a “madame” at a strip club. She stated that Klacik may have laundered money and committed other potentially criminal acts. The entire transcript is attached as an exhibit to the Complaint below.
However, Owens expressly noted that she was relying on third party accounts and that she “had no proof” and “cannot possibly verify” or confirm the Criminal Allegations. In a response to a letter from Klacik’s counsel, counsel for Owens also declared that “nothing [Owens] said in [her] video constitute{d] defamation of character,” “fall facts [she] made are backed by truth,” and that Owens had “EVERY right under the law to inquire about campaign finances.” That exhibit is also attached to the Complaint.
This is a relatively rare case of two public figures as opposing parties in a defamation case. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. This is precisely the environment in which the opinion was written. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. As such, public officials and public figures must show either actual knowledge of its falsity or a reckless disregard of the truth.
This is a matter of public concern and political debate. Courts are understandably hesitant to delve into the super-hearted environment of political speech absent the clearest and rawest forms of defamation. Of course, simply saying that something is your “opinion” does not automatically shield you from defamation actions if you are asserting facts rather than opinion. However, courts have been highly protective over the expression of opinion in the interests of free speech. This issue was addressed in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing piece, including what Ollman stated were clear misrepresentations. The court acknowledges that “the most troublesome statement in the column . . . [is] an anonymous political science professor is quoted as saying: ‘Ollman has no status within the profession but is a pure and simple activist.’” Ollman sued but Judge Kenneth Starr wrote for the D.C. Circuit in finding no basis for defamation.
Here however the allegations involve actual criminal conduct and thus involve per se categories of defamation. While damages are presumed in libel (written defamation), they are only presumed in slander (or spoken defamation) in cases of slander per se. Those per se categories often included (1) “imputation of certain crimes” to the plaintiff; (2) “imputation . . . of a loathsome disease” to the plaintiff; (3) “imputation . . . of unchastity to a woman;” or (4) defamation “affecting the plaintiff in his business, trade, profession, or office.” They differ among the states and there is a trend toward the merging of the standards of slander and libel.
This case is brought in Maryland which recognizes per se categories involving the words or actionable conduct that are presumptively damaging — “a self-evident fact of common knowledge of which the court takes judicial notice and need not be pleaded or proved.” M&S Furniture v. De Bartolo Corp., 249 Md. 540, 544, (1968). That includes allegations of criminal conduct. A. S. Abell Co. v. Barnes, 258 Md. 56 (1970).
The complaint also alleged malice — a key element given the public figure status of the plaintiff. The basis is the sharp disagreements between the two political figures. This includes tense exchanges over the issue of recognizing Juneteenth as a federal holiday.
This could produce some important new rulings in the case, including but not limited to what is opinion and what is effectively a statement of fact. We will be watching how the case unfolds in the Maryland courts.
Here is the Complaint and attached exhibits.