Congressman Sues TV Stations For Defamation For Airing Political Ads Against Him

from the wait,-isn't-this-politics? dept

Wed, Oct 31st 2012 10:45am — Mike Masnick

Now that we're neck deep in election campaigning, we're all used to the attack ads and the "fact checking" behind them showing how many of them struggle with being truthful. But most campaigns get this and move on (or they release their own attack ads that are just as bad). However, incumbent Rep. Jeff Denham (from California) is so spitting mad at the attack ad against him that he's suing the Democratic Congressional Campaign Committee and various local TV stations who ran the ad. First of all, the ad doesn't sound particularly different than plenty of typical campaign ads, many of which distort the records of opponents. Most candidates respond with a simple explanation of why the ad is a lie. But Denham decided to go that extra mile and actually file a lawsuit.

There are a few interesting/bizarre things to note here. First, the DCCC that he's suing is led by... other Congressional Reps. So he's basically suing a bunch of his existing colleagues in the House. I know that partisan politics can get rough, but lawsuits between existing members of Congress over an attack ad... that seems somewhat excessive.

Even if we get past that, and even if we accept that the attack ad goes so far above and beyond the norm that it's considered defamation (which is quite tough with a public figure where it would need to be shown that the mistruths were done willfully and maliciously), the fact that Denham is suing the TV stations who aired the ad is just crazy. He claims that he "warned" them, but the details of the lawsuit show that he warned them on October 24th... and filed the lawsuit on October 25th. Not much in the way of warning. While there aren't direct "safe harbors" a la Section 230 for online content, there are still serious questions about whether or not it makes sense to make a TV station liable for the content of an advertisement.

Even if he feels he has to hit back to counter the narrative in the ads, it seems quite likely that such a lawsuit could backfire, showing a politician with exceptionally thin skin, which tends not to be a useful trait in the job. Yes, attack ads suck. But it's the nature of the business. Suing other politicians and TV stations just seems like a massive overreaction and excessive poor judgment.

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Filed Under: defamation, jeff denham, political ads, politics
Companies: democratic congressional campaign committee

39 Comments

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Manabi (profile), 31 Oct 2012 @ 10:59am

It might make people think the attack ads are correct
Given that his response is so far out of the norm, this may have the entirely opposite effect, with voters going "hmm, he sure is overreacting to those ads, they must be true". I know that was my first reaction!
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calicojones (profile), 31 Oct 2012 @ 11:00am

And somewhere, Streisand is singing.
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Anonymous Coward, 31 Oct 2012 @ 11:12am

I have never seen these ads, but now I must look them up and watch them on youtube!
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Michael Long (profile), 31 Oct 2012 @ 11:13am

Re: It might make people think the attack ads are correct
Actually, you SHOULD be able to sue if the ad makes false or misleading claims.

We have a Truth in Advertising Act. Make it apply to political ads.
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Anonymous Coward, 31 Oct 2012 @ 11:26am

Assuming his opponents are actually lying about him, I hope this guy wins. I'm so sick of blatantly false or misleading political ads.
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Anonymous Coward, 31 Oct 2012 @ 11:30am

I'll allow.
I'm actually finding my self for this guy.

If this is what it takes to make attack ad's become more truthful. I don't see anything wrong with it.

If a company is told that the ad is misleading, and that they'll press charges and that company runs the ad, which they profit from, I believe they also should be sued.
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Anonymous Coward, 31 Oct 2012 @ 11:33am

it seems like an attack ad is pretty much the definition of willful and malicious; you have to know the truth in order to distort it, and the goal is having him lose his job. Of course, this being a politician, this could well be him claiming that the ad is a lie when it's actually true.

Suing the networks is pretty stupid, but I'd love to see political advertisements held to a higher standard (or any standard) so long as both parties get in on the action.
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Anonymous Coward, 31 Oct 2012 @ 11:33am

If he loses the election he has set up the grounds to get the result declared null and void./sarc
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johnny canada, 31 Oct 2012 @ 11:42am

He should sue and win.

Then TV stations will think twice about running any political ad.

Think of it prime time TV without political ads.

It would reduce campaign spending as there will be no TV or infomercials by politicos
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Anonymous Coward, 31 Oct 2012 @ 11:55am

I hope he wins too.

The way money is being put into campaigns, are superpacs are formed, money is transferred days later, then the superpac or funding org is dissolved, leaving no one accountable.

Suing the tv station may be the way to go. Politics are full of enough lies as it is. The Romney/Ryan ticket has shown just how bad it is...and the funny thing is they act like it doesn't matter if it's known as a lie.
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John Fenderson (profile), 31 Oct 2012 @ 12:07pm

Re: Re: It might make people think the attack ads are correct
I've long thought this. It would eliminate most political advertising -- a result I think everyone would cheer.
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Mason Wheeler, 31 Oct 2012 @ 12:12pm

Re:
Agreed. And aren't attack ads "willful and malicious" pretty much by definition? That doesn't sound like a particularly high bar to clear...
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Baldaur Regis (profile), 31 Oct 2012 @ 12:12pm

Order up!
One politician on toast, no mayo, extra crazy, extra cluelessness.
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Anonymous Coward, 31 Oct 2012 @ 12:15pm

As one of the Congressman's constituents (who is subjected to the ad in question multiple times a day now), I applaud this move. It's one thing to point out unflattering facts about someone running for office - and plenty of ads do exactly that - but making up lies that are easily disproved by a glance at the Congressional Record crosses the line into defamation.
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Anonymous Coward, 31 Oct 2012 @ 12:17pm

Immunity vs Responsibility
Is a TV station supposed to check the veracity of every claim made in political ads? Is it supposed to take a target's claim of defamation at face value, without a chance to investigate?
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Paul Brinker, 31 Oct 2012 @ 12:19pm

I could see the add working like this...
Mr Congress man, have you ever killed anyone? And if so, where did you put the bodies.

- Narrator: Mr Congress man says he never killed anyone, but we know the truth.

Attack Advertising will simply move to protected conjecture instead of outright saying something specific. As long as its an opinion, its safe by our free speech laws.
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TtfnJohn (profile), 31 Oct 2012 @ 12:41pm

The Hollywood Reporter, which Mike links to in his write up, doesn't appear all that concerned that the ads are untruthful as they have a link to YouTube video of the ad. If it's true that the TV stations didn't do their fact checking and ended up as part of a lawsuit as a result I'd be certain that the Hollywood Reporter did.

I doubt attack ads are going anywhere soon, no matter how many people complain about them, because political operatives are utterly convinced that they work. Sadly there is no evidence that the don't work. At least with the so-called "base".

Equally, though, the target ought to be able to sue if the ad(s) is factually incorrect. Keeping in mind, of course, that any suit will only attract attention to the original ad(s). Which will more than likely be the case with this one given that election day in the USA is so close and the case(s) will likely not be heard before then and that the damage, if any, will be done.
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anon, 31 Oct 2012 @ 12:59pm

Re:
Exactly, I hope he takes this all the way and wins and is given serious compensation. Maybe then others will start doing the same and when it comes to political ads they will have to be fact checked before the add is aired and possibly this will prevent a lot of politicians from airing adds.

It is not as difficult as people think to prove a politician lied, just look at Romney , there is more than ample evidence he lied about many things, and before this becomes political I am sure they could find adds about Obama that had lies in them.

The problem i think is that politicians lie so much that almost everything they say is a lie. And if caught out in a lie they just say they have changed there position on the subject. But I am sure they would be more careful if they had to pay a lot of money if they were caught out saying one thing for a few years then changing there position a few days before the vote.
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Anonymous Coward, 31 Oct 2012 @ 1:04pm

This is a lost cause. It is utterly impossible to defame a sitting US Congressman. Even the worst lie you can think of is probably less damaging than the truth.
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anon, 31 Oct 2012 @ 1:10pm

Re: I could see the add working like this...
Surely if your free speech includes insinuating that someone committed a crime then that is defamation? Or can i just go ahead and spread the word that someone committed a crime and when anyone asks for proof just say i assume he was committing the crime, if that is the case surely free speech is a danger to everyone and not a benefit.
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MrWilson, 31 Oct 2012 @ 1:20pm

Re: I'll allow.
"If a company is told that the ad is misleading, and that they'll press charges and that company runs the ad, which they profit from, I believe they also should be sued."

The TV stations don't verify the content of the advertising they carry. It would take too many man hours to fact check claims in time for them to run when they're still relevant for an election cycle. If TV stations could be sued simply for being told that an ad contains false information and still running the ads, TV stations would run out of ad revenue.
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MrWilson, 31 Oct 2012 @ 1:22pm

Re: Re: I'll allow.
Not to mention that the ad in question expressly claims that the DCCC is responsible for the content of the ad.
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harbingerofdoom (profile), 31 Oct 2012 @ 1:25pm

Re:
you can safely assume that at least to some degree, they are actually lying in this case.
the problem stems from a couple attack ads that claim he voted against two bills that in fact, he voted for.
additionally denham also advised both the DCCC and several television stations that the ads contained factual errors, they were pointed to the actual facts and they chose to go forward with them anyway.

while im not a large fan of leagaling your way through such issues, what other options are available when the opposition is spending tons of dough to (for the most part) lie through an election campaign?
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gyffes, 31 Oct 2012 @ 2:00pm

Re:
Actually, I think stations are REQUIRED to present "equal time"; it's not their job, however, to be arbiters of truthiness. Take it up with the FCC, bud.
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Anonymous Coward, 31 Oct 2012 @ 2:29pm

Re: Re: Re: I'll allow.
3rd party liability, bitches
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The Groove Tiger (profile), 31 Oct 2012 @ 3:24pm

Re: Re: Re: It might make people think the attack ads are correct
Would Faux News count as a giant 24/7/365 ad?
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nasch (profile), 31 Oct 2012 @ 3:40pm

Re: Re: I could see the add working like this...
Surely if your free speech includes insinuating that someone committed a crime then that is defamation?

If I say "he claims he never killed anyone, and I guess I'll take his word for it" there is no way he could get a defamation judgment against me. But I've implied that A) it's possible he's killed someone B) I might be a bit skeptical about his claim he hasn't and C) he hasn't presented any evidence of his innocence (even though it's impossible to prove a negative like that, and nobody should have to prove their innocence anyway).
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nasch (profile), 31 Oct 2012 @ 3:41pm

Re:
If it's true that the TV stations didn't do their fact checking

They are not required to do any fact checking.
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Anonymous Coward, 31 Oct 2012 @ 6:38pm

Re:
He's hilarious! Check out his Achmed The Dead Terrorist. SILENCE! I KILL YOU! Classic!
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Andrew F (profile), 31 Oct 2012 @ 9:23pm

Re: Re:
The bar is that you have to be outright lying and know you're outright lying -- mere innuendo or misleading comments probably would be okay. Also, if you read the complaint, it argues that the "gist" of the ad was defamatory. If you have to rely on the gist of something as opposed to the actual something, it's probably not going to pass that bar.

The high bar would be useful for the TV stations, who could argue that they just aired the ad without fact-checking, and therefore didn't know anything.
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Anonymous Coward, 1 Nov 2012 @ 5:21am

Re: Re: It might make people think the attack ads are correct
Politicians ... telling the truth ...

Do you see why what you suggest is an impossibility?
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Anonymous Coward, 1 Nov 2012 @ 5:29am

Re: Immunity vs Responsibility
If Fox is any indication on fact checking the answer is a resounding "NO!"
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Anonymous Coward, 1 Nov 2012 @ 5:46am

Re:
You have no concerns over the possible chilling effects this would have should he win a suit against the TV station?
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Dirkmaster (profile), 1 Nov 2012 @ 7:00am

Re: Re:
So let me get this straight. Television stations aren't required to fact check advertisements, of which they run several hundred a day. Google is required to KNOW when a video is copyrighted, when they get several thousand a minute.

That seems fair.
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Paul Alan Levy (profile), 1 Nov 2012 @ 8:58am

Odd topic for a defamation claim
Given the incredible complexity of federal budget legislation, and the fact that it is often crafted for the precise purpose of enabling "gotcha" campaign advertising, the fact that this suit has been filed over the proper characterization of what a given vote represents strikes me as a dicey basis for a defamation claim.
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nasch (profile), 1 Nov 2012 @ 9:20am

Re: Re:
You have no concerns over the possible chilling effects this would have should he win a suit against the TV station?

It sounds like he would consider the chilling effects a positive outcome.
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Bergman (profile), 1 Nov 2012 @ 2:54pm

Re: Re: Re: It might make people think the attack ads are correct
Being able to bring a lawsuit against a politician who makes campaign promises he has no intention of keeping for false advertising would have a certain appeal...

No politician would ever pass such a law, of course.
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Richard, 1 Nov 2012 @ 10:57pm

"Truth in advertising" for political speech
FactCheck.org has mentioned that it is difficult to apply "truth in advertising" to political speech. In fact, if a US broadcaster accepts at least one candidate ad for a specific political office, the Federal Communications Act requires that the broadcaster also accept any other candidate ads for the same office and not withhold or edit such ads even if they are known to be false.

This requirement does not apply to ads from parties other than candidates, and broadcasters can choose to have a policy of rejecting all candidate ads for a specific office. In the case of political ads from parties other than candidates (such as PACs), there is the question of liability. (Broadcasters are generally not liable for content in ads from candidates given the restriction against censoring such ads.) For a "public figure" (such as a political candidate) to prevail in a claim that they were defamed, they must show that the statements in question were made with "actual malice," in that the speaker either knew that the statements were false or acted with "reckless disregard for the truth." Another issue mentioned by FactCheck.org is that a negative or false ad can do damage before legal recourse can have an effect.
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Anonymous Coward, 2 Nov 2012 @ 9:36am

"Yes, attack ads suck. But it's the nature of the business. Suing other politicians and TV stations just seems like a massive overreaction and excessive poor judgment."

Suing the TV station is stepping a bit too far, but suing over a public lie sounds peachy to me. This being business as usual isn't a justification. It just means we the people are too fucking accepting of this bullshit. There damn well should be consequences for running a political ad that's full of bullshit.
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