October 01, 2007

Defamation and Politics

by PG

Today I read about two odd, politicized defamation suits that both are being described as likely to fail. The first was mentioned in an AP article about an abortion clinic's opening in Aurora, IL:

Also Monday, anti-abortion activists filed a libel lawsuit against Planned Parenthood in Kane County District Court, claiming Planned Parenthood stated in a letter to Aurora officials and in at least one newspaper advertisement that opponents of the clinic had ''a well-documented history of violence and criminal activity.''
''You cannot accuse the peaceful citizens of Aurora of violent crimes and advocating violence simply because you disagree with their message,'' said attorney Tom Brejcha of the Thomas More Society of Chicago, which filed the lawsuit on behalf of 19 area activists.
Trombley said he saw ''no basis for this lawsuit'' but that he hadn't read it and so couldn't comment further.
I have read neither the activists' complaint nor Planned Parenthood's communications, but I strongly suspect that the latter were couched in generalities about the anti-abortion movement -- which does indeed have a documented history of bombings and bio-terrorism (abortion clinics were one of the few American entities that had any familiarity with anthrax pre-9/11) and has had members convicted under RICO (a friend told me that the sponsor for her confirmation in the Catholic Church was in jail the night of rehearsal, which really worried the nun in charge until she found out what the crime was). So if the clinic's opponents were libeled, it was a group libel of the type that U.S. law doesn't permit to be punished, any more than a person who identifies as a decadent coastal Leftist could sue Andrew Sullivan over nasty comments made about the group but not naming the individual. In the unlikely event that Planned Parenthood accused the 19 plaintiffs by name of each having "a well-documented history of violence and criminal activity," however, I'd expect a local jury to try to bankrupt the organization in damages.

The second suit is one that has been going for some time, with the plaintiff a Marine facing charges of unpremeditated murder while suing Congressman Jack Murtha for, among other remarks, saying about the Marines accused of Haditha civilian deaths, "[T]hey overreacted and killed a number of civilians without anybody firing at them." Other defendants included unnamed Department of Defense who may have leaked information to Rep. Murtha. Apparently to avoid the Speech or Debate Clause problem of suing a Congressman for commenting on government affairs, Sgt. Wuterich's complaint states,

20. Based on the inaccurate and false information, Mr. Murtha has made repeated statements concerning the Marines involved in the tragic incident, which included SSgt Wuterich, that are defamatory in nature. Indeed, he has even inappropriately compared the tragic events of Haditha with the infamous war crimes and deliberate wide-spread massacre of civilians at My Lai in Vietnam. Many of these comments were uttered outside of Mr. Murtha’s scope of employment as a Congressman. 21. Upon information and belief, no other Member of Congress who was provided with information pertaining to the Haditha investigation has thought it appropriate to publicly comment upon. This is due, in part – but not limited to – the inappropriateness of the circumstances and the lack of available evidence of wrongdoing. Indeed, some Congressional Members who have been provided information have specifically stated that it would be inappropriate to comment prior to the completion of the official investigations and any courts martials, should they be deemed necessary. This further demonstrates that some or many of Mr. Murtha’s comments were made outside of his scope of employment.
The claim that no other Member of Congress has publicly commented on the Haditha investigation does not appear to be true; the LA Times carried the following on May 27, 2006:
Rep. John Kline (R-Minn.), a retired Marine colonel, said there was clearly an attempt to cover up the incident by those involved. But he said he did not think the Marine command was slow in investigating. "There is no question that the Marines involved, those doing the shooting, they were busy in lying about it and covering it up — there is no question about it," Kline said. "But I am confident, as soon as the command learned there might be some truth to this, they started to pursue it vigorously. I don't have any reason now to think there was any foot dragging."
However, I disagree with other bloggers who have said that the suit will be dismissed under the Speech or Debate Clause. The Clause does not protect activity that is not instrumental to legislative duties. The Supreme Court held in Doe v. McMillan, 412 U.S. 306 (1973), that public dissemination of materials outside the halls of Congress is not protected because it is unnecessary to the performance of official legislative actions. As far as I know, Rep. Murtha's statements were not made while he was gathering support for a bill to prohibit Marines from killing foreign civilians in cold blood (this being already prohibited under the U.S. military code and the laws of war). The Court specifically said in Hutchinson v. Proxmire, 443 U.S. 111, 130 , 132-133 (1979) that press releases and newsletters are ''[v]aluable and desirable'' in ''inform[ing] the public and other Members'' but neither are essential to the deliberations of the legislative body nor part of the deliberative process.

Wutherich's suit is further complicated by his likely status as an involuntary limited purpose public figure. He was identified by name by other people, particularly the military, but never by Rep. Murtha, and he has publicized his own story on a terribly-designed website with his name as the URL.

October 1, 2007 11:18 PM | TrackBack
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