Ciao!

Miguel,

Free speech is a consititutional issue, whereas a defamation theory (libel) is tortious. Kerry is claiming a tortious reputational harm. Free speech protections are not an unbridled green light to savage the personal and/or professional reputation of politicians. While public officials have put themselves under public scrutiny, and the public should have more rights to criticize them than other private parties, politicians still benefit from a degree of reputational protection.

A well-known Supreme Ct case discusses the issue of defamation of public officials (New York Times v. Sullivan). Under Sullivan, where the court focused heavily on the importance of permitting criticism of public officers, a public official can only prevail in a defamation action where he shows that the defendant either knew the statement was false or recklessly disregarded whether the communication was false, a fault standard known as "actual malice," proven by "convincing clarity," which has been interpreted to as requiring the plaintiff (Kerry) to establish actual malice by the heightened burden of proof of "clear and convincing evidence."

Thus, Swift Boat Veterans for Truth are not provided an absolute privilege to defame public officials, but rather a qualified privilege that can be lost by clear and convincing evidence of actual malice.

The public has a right to criticize politicians. But to allow private parties the unchecked right to use falsities to damage the reputation of public officials is simply unfair, and harmful to democratic ideals in my opinion.

If there is substance to Kerry's claim, then it should proceed. If it's calculated to quiet what SBVT believes to be truthful criticism, it will be dismissed early, or adjudicated as such. But to restrict Kerry's access to the courts or administrative judicial organs for redress of perceived tortious acts by SBVT is incomprehensible.

To be fair, I've not seen the ads, so don't know if they appear to be legally defamatory. But. There's been much controversy surrounding Kerry's Vietnam record. And from what I've heard/read, the ads mainly focus on Kerry's 1970s testimony where he called Vietnam vets "war criminals" and such.

My instinct, however, was to think this a very bad strategy on Kerry's part. I don't see how suing can help him look good, whereas simply challenging the claims would've been better. Then again, I never thought basing the campaign centrally on his Vietnam record was a good idea. First, because there were questions about the record. Second, because I don't think his service is as relevant as he thinks it is. Third, because he should've instead focused on actual issues.

I just did an internet search and pulled up the Swift Boat Veterans for Truth website. The site includes an online version of the ad in question. I don't think it meets the criteria for "defamatory" in a legal sense. It just uses Kerry's testimony interspersed w/ former POW reactions on how they feel Kerry betrayed them. While I've seen few campaign ads so hurtful to a candidate, I've some that were much more meanspirited.

I'm not sure about SBVT having defamed him, either. Also agree with you that launching a lawsuit may be a bad idea.

Maybe because I'm getting older and I've seen a couple of elections, but it seems that this campaign exceedingly virulent. Lawsuits, allegations of lies, reliance on what happened on a Vietnamese river in 1969 as a campaign bulwark, etc.

I wonder if they've all been like this; or is there something particularly venemous about this election? Maybe b/c Bush is a wartime Pres following on the heels of a period of unusual economic prosperity and a very popular Pres?

Tom, I remember the Bush v. Dukakis campaign as especially brutal. Remember the Willie Horton ads? Maybe I've just not seen enough ads this time around, but I think mudslinging's been around for as long as I can remember.

Neither having a law background nor having seen the ads in question as well as for example Michael Moore's 9/11 film my opinion on this can only be a little vague:

I think private campaigning is great. Because it shows that people care about elections. Isn't that a precondition for a working democracy?

So, if a candidate lies, these lies should be made public. If a private campaign lies this should be made public as well. I am afraid however, that the latter thing wouldn't help his reputation, though. The only chance to really eliminate all doubts is to have a court decide in your favor.

I think that is why Kerry sues. If Bush feels/felt like this about Michael Moore I think he should sue/should have sued him as well. Because as long as he doesn't people will tend to believe what Moore says.

I guess, you disagree with me on that and rather think that sueing shows some sort of insecurity or weakness on the part of the candidates which the other side will be happy to exploit.

Well, finally I think all the flaming going on is a strategy to sidetrack the voters' attention from the real issues. Bush wants that people don't see the mess he has created and Kerry wants that people don't see that he has no clear and most importantly no probable alternative.