Newspaper column: High court apparently finds Republicans who support Reid are disreputable

It’s like in the movie “Miracle on 34th Street,” if the court says Edmund Gwenn is Santa Claus, then, by golly, he must be Santa Claus.

Now that the Nevada Supreme Court has said a libel case can go forward, it must have concluded that a Republican who supported Harry Reid’s re-election committed a disreputable act. How else to interpret it?

During the 2014 Republican primary race for a state Senate seat covering Carson City and part of Washoe County, Gary Schmidt ran a television commercial accusing incumbent Ben Kieckhefer of being a supporter of Harry Reid — who spits out the word Republican as if it were an obscenity.

Schmidt noted that then-state Sen. Bill Raggio had signed on as a Republican for Reid in the 2010 election but Kieckhefer still supported Raggio for a Senate leadership post, despite Raggio turning against his own party.

Gary Schmidt must defend against libel suit, says Nevada Supreme Court. (RGJ file photo)

Schmidt called this guilt by association and he was quoted at the time as saying, “And the biggest secondary evidence I have — because we re-researched this again — is this: There is nothing on the record anywhere where he (Kieckhefer) gave any ounce of support or endorsement to Sharron Angle. So what did he do, vote for the Green Party candidate?”

Kieckhefer said the accusation that he was a Reid supporter was false and filed a libel suit against Schmidt. A judge ordered Schmidt to stop airing the commercial. “Ben Kieckhefer is likely to suffer irreparable injury to his career and reputation from defendant’s television advertisements,” the judge concluded.

Kieckhefer won the primary election.

Schmidt asked the state high court to throw out the libel suit on the grounds that it amounted to a strategic lawsuit against public participation (a SLAPP suit). Recently that court unanimously refused, saying “there has been absolutely no other evidence presented that supports Schmidt’s statement, we conclude that he did not act in good faith when he claimed that Kieckhefer supported Reid.”

Under the U.S. Supreme Court case of New York Times v. Sullivan in order for an elected official to successfully sue for defamation and recover damages he must prove a statement about him was made with “actual malice” — that the statement was made with the knowledge of its falsity or with reckless disregard for whether it was true or false.

But under libel law this falsity standard is but one element that must be shown to substantiate defamation.

More importantly a plaintiff must show that the communication in question is in fact defamatory — that it imputes such things as a criminal act, moral turpitude or suggests a lack of morality, integrity or good character and is damaging to one’s reputation.

Apparently the court only focused on the falsity claim, so the defamatory nature of the communication must be prima facie. Saying a Republican supported Reid is a smear on his good name apparently. Otherwise, why would the case go forward at all?

You see, it is not libel to say that someone is a known practicing thespian even if it is totally false, because calling someone an actor does nothing to besmirch a reputation.

Now, what does this court decision say about the dozens of elected and appointed Republican officials who signed on as Republicans for Reid? Might it be defamatory?

This whole case speaks volumes about the futility and malefaction of courts and lawyers trying to police political speech. Such court rulings chill free speech and deny the voters a wide open, full-throated and free-wheeling debate by those who would represent them in various elected capacities.

Nevada judges and justices would be well advised to pay heed to the fundamental purpose of the First Amendment.

A 2012 defamation case in Maine resulted in these wise words from the 1st U.S. Circuit Court of Appeals: “(D)efamation law does not require that combatants for public office act like war-time neutrals, treating everyone evenhandedly and always taking the high road. Quite the contrary. Provided that they do not act with actual malice, they can badmouth their opponents, hammering them with unfair and one-sided attacks — remember, speaking out on political issues, especially criticizing public officials and hopefuls for public office, is a core freedom protected by the First Amendment … And absent actual malice, more speech, not damages, is the right strike-back against superheated or false rhetoric.”

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.


14 comments on “Newspaper column: High court apparently finds Republicans who support Reid are disreputable

  1. Rincon says:

    If A is a supporter of B and B is a supporter of C, then is A always a supporter of C? Obviously not. If Schmidt accompanied his accusation with his decidedly flawed reasoning, then libel did not occur since the audience had all of the necessary information. If he didn’t, then his behavior was fraudulent and libel did occur (in only my inestimable judgement, of course).

  2. It has nothing to do with flawed reasoning. Is it defamation if so many Republicans are doing it?

  3. Steve says:

    This isn’t complex.
    Political speech has always been suspect.
    Advertising has always been suspect.
    It is, was and always will be buyer beware, no matter how many laws are written, the end user is the final arbiter.

  4. Rincon says:

    “Political speech has always been suspect.” Alas, that is the primary cause of our political debilitation. In the world of commerce, trust is everything. When a businessman receives a check, for instance, it is critical that he can trust in its value. If trust broke down in commerce, it would inevitably become stunted. It’s a given that politics is badly stunted and the primary reason is that no one knows who to believe or, worse, large numbers believe the wrong people. No wonder we elect so many scumbags.

  5. Patrick says:

    n. the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease or being unable to perform one’s occupation are called libel per se or slander per se and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed. Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error.

    Read more:

    Seems pretty simple to me; if the statement was untrue, and it damaged his reputation, (and assuming some damage or harm, and maliciousness) it’s defamation.

    What’s the problem?

  6. So, a Republican who supports Reid has done something that is damaging his reputation and causes others to view his character, morality and/or integrity as flawed. Just wanted to make that clear.

  7. Steve says:

    “In the world of commerce, trust is everything.”

    Rincon,,,,one name as an answer to that.


  8. Steve says:

    In this case, a Republican doesn’t actually have to come out in support of Reid.
    All the Republican has to do is not say anything about it!

  9. Patrick says:

    Depends on that republicans reputation.

    For some republicans no, for others yes. It’s all about the perception among the people who together make up that republicans’ reputation.

  10. Rincon says:

    If a mother supports her son who supports some drug dealer, does she support the drug dealer? Schmidt’s statement is a fabrication which may or may not coincide with reality. It was made in an attempt to hurt Kieckhefer’s career. That’s clearly malicious intent. The big question is whether Kieckhefer had ever made it clear publicly that he did not support Reid. If so, then Schmidt’s statement is a malicious fabrication. If not, it’s hard to prove falsehood.

    As for John Kasich, false statements that are clearly satirical are not considered libelous because there is no deception of the audience.

  11. Steve says:

    Rincon exercises “buyer beware”!

    Good job, get more people to do it!

    Kieckhefer was silent on the subject. He never publicly “supported” Sharron Angle. That was his “offense”….

    Buyer beware!

  12. Would it have been OK if Schmidt had said: ‘I deduce from his silence that Kieckhefer was a defacto Reid supporter.’?

  13. Rincon says:

    Yes, of course.

    What amazes me is that in Illinois for example, you are not free to write anything you want without consequence. If you sign your name to a check and then bounce it, the recipient can collect triple damages. This enables trust in transactions, making bounced checks pretty rare. In contrast, when it comes to speech or writing not directly involving money, anything goes, so trust goes out the window. Conservatives advocate a sort of wild west, every man for himself world of paranoia, where trust is just a form of collateral damage. When practiced in economics, it is termed anarchy; in communication, it is termed free speech.

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