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.
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.