Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
It seems that the Obama campaign is not alone in issuing legal threats over campaign ads that it considers deceptive. Rep. Tim Walberg, R-Tipton, is threatening the group Health Care for American Now with legal action over a TV ad that he claims distorts his position on insurance coverage. Walberg's attorneys sent a letter to the ACORN-affiliated organization that accuses them of defamation for running an allegedly false advertisement:
The television advertisement you are running against Congressman Tim Walberg is false and purposefully damaging to his reputation. Your organization's advertisement contains the following statement, which is false: "Republican Congressman Tim Walberg sponsored legislation that would let insurance companies make the rules. They could even deny coverage for preexisting conditions like cancer."First, under the legislation cited in your advertisement, H.R. 4460, insurance companies would not make the rules. According to the Congressional Research Service and National Center for Policy Analysis, the insurance policies would be regulated by and subject to state and federal laws ...
Michigan follows the common law of defamation:
"A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Rouch v. Enquirer & News, 440 Mich 238, 251 (1992).
If these false statements disseminated by your organization are not retracted and/or corrected, and we are not provided with evidence of such retraction or correction, our client may pursue legal remedies including, but not limited to, a suit for libel seeking actual and exemplary damages. Accordingly, we respectfully demand that you cease this libelous behavior and make a retraction of these libelous statements. In addition, should you repeat such defamatory statements in the future, such a defamatory falsehood will be published with knowledge that it is false.
Here is the ad under dispute:
A Gongwer news service article on Tuesday quoted a spokesperson for Mark Schauer, who is challenging Walberg in the November election, defending the accuracy of the ad:
Zack Pohl, spokesperson for challenger Senate Minority Leader Mark Schauer, D-Battle Creek, said the bill Mr. Walberg supported could have the effect of allowing insurance companies to reject people with pre-existing conditions if a state allowed that."While we are not responsible for the claims being made by outside groups, the fact of the matter is that Walberg supports legislation that allows consumers to purchase health care coverage across state lines, which would encourage insurance companies to set up shop in states with the least restrictive laws. This would essentially allow the insurance companies to set the rules and discriminate against patients with pre-existing conditions," Mr. Pohl said in a statement. "Walberg has said that 'everyone can walk into an emergency room and receive basic health care,' and frankly the people of Michigan deserve better."
As I've writen before, the Obama campaign has threatened similar legal action against TV stations that agree to air an ad produced by the NRA that the campaign insists is inaccurate. Regardless of the accuracy or inaccuracy of either of these ads, using the courts to go after such ads presents a serious first amendment problem.
Politics
Comments
I don't know enough about this stuff, but I was curious Ed, would it make a difference if an ad were running that is, legally speaking, libelous (or is it slander if it's on TV)?
I know that's a valid instance where you can abrogate someone's First Amendment right to free speech, so I'm assuming that the big problem you have with the lawsuits mentioned in your posts is that they're on defamation grounds and not libel?
Posted by: Jeff Hebert | October 21, 2008 9:20 AM
For public figures, particularly political ones, there's very little protection from defamatory or libelous statements. And when it's a matter of how one would interpret the effect of a particular bill, there's hardly any grounds at all for a legal claim.
The reality is that Walberg's in a surprisingly tough re-election fight, despite being a conservative's conservative in a conservative district. If he was winning handily, he probably wouldn't bother with this kind of tactic.
Posted by: James Hanley | October 21, 2008 10:00 AM
James is right, it's nearly impossible to win a libel or defamation case involving a public official. And that is as it should be. The only statements that should be actionable in such a case are direct, simple claims of fact that the speaker knows to be false and damaging - "candidate X has sex with sheep." Matters of interpretation about the effect of a vote do not count.
Posted by: Ed Brayton | October 21, 2008 11:12 AM
Ed, Walberg is my representative. Are you in fact claiming .... ?
Posted by: James Hanley | October 21, 2008 11:48 AM
Wouldn't this kind of thing be covered under "Truth in Advertising" laws? That's what I would think, anyway. Then again, my legal expertise lies somewhere between "slim" and "none".
Posted by: MRL | October 21, 2008 2:05 PM
What if the ad said "We believe candidate X is the kind of person who would have sex with a sheep." Or, "Candidate X looks like other people we know, all of whom have had sex with sheep."
Are veiled insinuations legal?
I think many of the ads linking Obama to Ayers might fall in this category. "Obama is friends with terrorists...just sayin'."
Posted by: chris | October 21, 2008 5:16 PM
Chris,
Those would certainly be legal. As any lawyer will tell you, law and justice are not synonyms.
Posted by: James Hanley | October 22, 2008 8:04 AM