As someone who has taught torts (including defamation) for three decades, I pay close attention to defamation claims coming out of campaigns. I often question the viability of such claims given the higher burden for public officials and public figures under controlling defamation cases. However, a claim during the New Jersey gubernatorial debate between Democratic Rep. Mikie Sherrill (D-NJ) and Republican Jack Ciattarelli, may have triggered a viable torts case. It occurred when Sherrill accused Ciattarelli of “killing thousands.”

Ciattarelli is threatening a defamation lawsuit and it is no idle threat.

The moment came in the debate after Ciattarelli hit Sherrill for first expressing sympathy for Charlie Kirk after his assassination, but then flipping when the left responded with rage and “calling him a misogynist and a racist.”

Rep. Sherrill responded by condemning Ciattarelli for owning a medical publishing business. However, Ciattarelli then noted that he at least “got to walk at my graduation.” It was a reference to Rep. Sherrill not being allowed to walk at her graduation from the United States Naval Academy, reportedly due to her unspecified involvement in a cheating scandal.

Sherrill shot back with “I’m so glad you went on to kill tens of thousands of people in New Jersey, including children.”

It is the most dangerous legal moment for campaign lawyers when your candidate strikes out in the heat of a debate. What is interesting is that Sherrill then seemed to double down. She told USA Today that

“I guess, to me, it’s not a leap to say that somebody… who was printing [the opioid companies’] misinformation about how safe this was, who then took the next step further to coach people through. This is a time when, at the U.S. Attorney’s Office, we’re talking about ‘How are we going to stop these pill pushers?’ and so we’re trying to stop the overprescription of pharmaceuticals as he’s trying to help people go around these doctors.”

Her campaign also pushed back. Sean Higgins, Sherrill’s communications director, said

“Jack’s reaction is to hide behind a lawsuit, not to take responsibility. What’s reckless and irresponsible is Jack Ciattarelli making millions of dollars profiting off the pain of New Jerseyans — publishing misinformation about the dangers of opioid addiction and developing an app to coach patients to ask doctors for more drugs.”

Fact-checkers with PolitiFact and the New Jersey Globe have rejected Sherrill’s claim as untrue.

The failure to issue a retraction leaves Sherill more open to a lawsuit.

The common law has long recognized per se categories of defamation where damages are presumed and special damages need not be proven.  These include: (1) disparaging a person’s professional character or standing; (2) alleging a person is unchaste; (3) alleging that a person has committed a criminal act or act of moral turpitude; (4) alleging a person has a sexual or loathsome disease; and (5) attacking a person’s business or professional reputation.

Claiming that Ciattarelli “killed thousands” would certainly fall within these per se categories.

The challenge for Ciattarelli will be the higher standard. Under New York Times v. Sullivan, the Supreme Court crafted the actual malice standard that required public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth. That standard was later extended to public figures.

Courts tend to be leery of lawsuits that turn on overheated campaign exchanges. However, this is an express statement that Ciattarelli killed thousands. Sherrill will claim that this was mere campaign rhetoric or obvious opinion.

The Supreme Court dealt with such an overheated council meeting in Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6 (1970), in which a newspaper was sued for using the word “blackmail” in connection to a real estate developer who was negotiating with the Greenbelt City Council to obtain zoning variances. The Court applied the actual malice standard and noted:

It is simply impossible to believe that a reader who reached the word “blackmail” in either article would not have understood exactly what was meant: It was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.

The question is whether saying that a candidate literally killed thousands can be dismissed as “rhetorical hyperbole.”

The Supreme Court has shown that there are limits to opinion as a defense as in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). In that case, there was another inflammatory allegation stemming from a public meeting.  An Ohio high school wrestling coach sued over an opinion column alleging that he had lied under oath at a public hearing, saying that it was tantamount to an allegation of perjury.

The trial judge granted summary judgment on the ground that the assertion in the newspaper column was opinion.  The Court however rejected the defense in the case in 7-2 opinion written by Chief Justice William Rehnquist. The Court noted that “expressions of ‘opinion’ may often imply an assertion of objective fact”  and may inflict “as much damage to reputation” as factual claims. Moreover, some opinions are based on assertions that are “sufficiently factual to be susceptible of being proved true or false.”

Saying that a candidate killed thousands would certainly seem to be something “susceptible of being proved true or false.”  Moreover, there is ample evidence of malice or reckless disregard in context.

In my view, there is enough here to defeat a motion to dismiss. While she could score a favorable trial judge, I would be surprised if a threshold dismissal would survive appellate review. In other words, Sherrill could well find herself in a trial for defamation.