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.

 

Newspaper column: Supreme Court tells Nevada judges to butt out of campaigns

A Supreme Court opinion from earlier this summer should send a message to Nevada judges to butt out of election campaigns.

The court reversed and remanded a case out of Ohio that involved a law making it a crime for any person to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not” during the course of a political campaign, as reported in this week’s newspaper column, available online at The Ely Times, the Elko Daily Free Press and Mesquite Local News.u

Just weeks earlier a Nevada judge forced a state Senate candidate in the Republican primary to stop running a television commercial saying his opponent was a supporter of Harry Reid.

The judge wrote, “Ben Kieckhefer is likely to suffer irreparable injury to his career and reputation from defendant’s television advertisements.” Being associated with our senior U.S. senator can do that.

In the Ohio case, a group called the Susan B. Anthony List attempted to erect a billboard during the 2010 election season criticizing Rep. Steve Driehaus for voting for ObamaCare and thus supporting taxpayer-funded abortion. Driehaus got the Ohio Elections Commission to threaten the billboard company and the billboard was never posted.

Susan B. Anthony List sued, saying the law abridged its First Amendment rights.

Considering ObamaCare dictates the coverage of abortifacients, the statement about tax-payer funded abortion might well be considered true by many.

Just as Nevada state Senate Republican primary candidate Gary Schmidt’s claims about opponent Ben Kieckhefer were not proven untrue merely by the absence of Kieckhefer’s name on a list of Republicans for Reid. No one has found any evidence he supported Reid’s opponent. Kieckhefer at the time also told a newspaper reporter he intended to support Reid backer Bill Raggio’s bid to retain a Republican leadership position even though Raggio had openly supported Democrat Reid over Republican Sharron Angle.

Truth in an election campaign is not something for a commission or a judge to decide. That is for the voters to determine.

Justice Clarence Thomas noted in the Susan B. Anthony opinion, “The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the ‘practical effect’ of the Ohio false statement scheme is ‘to permit a private complainant … to gain a campaign advantage without ever having to prove the falsity of a statement.’”

There is no requirement in the Constitution that people must defend their speech. It is up to others to reply with equal measures of free speech and win in the court of public opinion, not the courts.

Read the entire column at Ely, Elko or Mesquite.

Ohio tried to bar bill board

Supreme Court opinion tells Nevada judges to stop dabbling in campaign speech

A Monday Supreme Court opinion should send a message to Nevada judges. The court reversed and remanded a case out of Ohio that involved a law making it a crime for any person to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not” during the course of a political campaign.

Recently a Nevada judge forced a state Senate candidate in the Republican primary to stop running a television commercial saying his opponent was a supporter of Harry Reid.

A group called the Susan B. Anthony List attempted to erect a billboard in Ohio during the 2010 election season criticizing Rep. Steve Driehaus for voting for ObamaCare and thus supporting taxpayer-funded abortion. Driehaus got the Ohio Elections Commission to threaten the billboard company and the billboard was never posted.

Susan B. Anthony List sued saying the law abridged its First Amendment rights.

Writing the high court’s unanimous opinion, Justice Clarence Thomas said a “Commission panel here already found probable cause to believe that SBA (Susan B. Anthony) violated the statute when it stated that Driehaus had supported ‘taxpayer-funded abortion’ — the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that petitioners’ intended speech is ‘arguably proscribed’ by the law.”

Bill Raggio, center, was a Republican for Reid and was supported in his bid to retain a Republican leadership position by Ben Kieckhefer. (Sun file photo)

Considering ObamaCare dictates the coverage of abortifacients, the statement about tax-payer funded abortion might well be considered true by many.

Just as Nevada state Senate candidate Gary Schmidt’s claims about opponent Ben Kieckhefer were not proven untrue merely by the absence of his name on a list of Republicans for Reid. No one has found any evidence he supported Reid’s opponent, while he told a newspaper reporter he intended to support Reid backer Bill Raggio’s bid to retain a Republican leadership position.

But the judge in the case wrote, “Ben Kieckhefer is likely to suffer irreparable injury to his career and reputation from defendant’s television advertisements.” Being associated with our senior U.S. senator can do that.

Truth in an election campaign is not something for a commission or a judge to decide. That is for the voters to determine. There may yet be further court proceedings in this matter.

Justice Thomas also noted:

“The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the ‘practical effect’ of the Ohio false statement scheme is ‘to permit a private complainant … to gain a campaign advantage without ever having to prove the falsity of a statement.’ … ‘[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election.’ … Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelection probable-cause finding, ‘such a determination itself may be viewed [by the electorate] as a sanction by theState.'”

Driehaus lost. Kieckhefer won.

Prior restraint: Judge orders candidate to stop running TV ad linking opponent to Reid

It is called prior restraint.

But that doesn’t seem to stop Nevada judges from doing it, as I’ve noted before.

On Friday a Reno judge ordered state Senate candidate Gary Schmidt to stop running a television ad that accused his Republican primary opponent, incumbent Ben Kieckhefer, of being a supporter of Harry Reid in the 2010 election, according to a Reno newspaper account.

Now, that is probably libel per se, if anyone could “prove” it is not true. Kieckhefer does have close ties to a number of those infamous Republicans for Reid. Early voting ended Friday and the primary is Tuesday.

Gary Schmidt (RG-J file photo)

In granting Kieckhefer a preliminary injunction, Judge Patrick Flanagan, wrote, “Ben Kieckhefer is likely to suffer irreparable injury to his career and reputation from defendant’s television advertisements.”

If you can’t stand the heat, get out of the political kitchen.

“It is important that at some point, when something is blatantly false, that it should not be tolerated,” the newspaper quoted Kieckhefer, a former Reno Gazette-Journal reporter, as saying. “I am a staunch defender of the first amendment (Yes, the paper ran it lower case). I am a former journalist and I believe in it. But it is not universal and it should not protect people’s ability to just make something up.”

Kieckhefer and the judge are both wrong. Prior restraint is the essence of censorship, which is anathema to the First Amendment right to free speech and press. Yes, even if it is later proven to be false.

Kieckhefer is free to stand up in public and call Schmidt a liar. He can also sue Schmidt for libel. But stopping him from saying whatever he wishes in the middle of campaign is unjustifiable. Politicians should be free to lie about their opponents and get caught lying.

Of course, in this case, it will be interesting to hear the proof of the lie.

This is how the Reno newspaper account concludes:

“Before the ad was broadcast for the first time Wednesday, Schmidt said part of his proof of Kieckhefer’s support for Reid was an article from the Las Vegas Sun.

“‘What I have is an article and other testimony and then guilt by association,’ Schmidt said then, noting Kieckhefer’s Republican friends include former state Sen. Bill Raggio and Reno Mayor Bob Cashell, who both supported Reid against Angle.

“‘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?’ Schmidt said.”

That is why there is a First Amendment — to let the truth arise from the exchange of allegations and not have some judge weigh in and deny the voters to right to hear what the candidates have to say, showing their character and probity.

The judge is stealing information from the voters and usurping their right to determine the outcome of the election.

What one candidate says about another says more about that person than it says about his opponent. If we assume voters are too stupid to figure it out, eventually, democracy is a failed experiment.