This topic is monitored by Moritz Law Professor Edward B. Foley
The Swift Boat Ad: A Legal Analysis
Does the ad violate Ohio's libel or election laws?
Swift Boat Veterans for Truth, an organization created to call John Kerry's war record into question, has been running a campaign advertisement alleging that presidential candidate John Kerry is lying about his Vietnam War record. 1 It claims that he made false claims about being wounded and about his conduct as a swift boat commander. Kerry supporters contend that the creators of the ad were not members of his swift boat crew and are lying about him and his conduct. 2
If the advertisement is true, it is, of course, completely protected by the First Amendment and is a part of election discourse. A more important question is raised by the claim that it is demonstrably false, at least in certain respects. If the ad contains false statements, would Senator Kerry or his allies have any legal remedies?
In evaluating any potential liability based on the content of this advertisement, it is important to carefully distinguish among different kinds of assertions made in the ad. Some, such as "he lacks the capacity to lead," are almost certainly protected opinion. Others, such as "I served with John Kerry," is factually true or false, depending on the meaning of "served;" if it means "serving in the same swift boat with John Kerry," when the speaker did not do so, then it is demonstrably false. 3 Standing alone, however, this assertion even if false is not libelous—meaning that it is not a statement about Kerry's conduct or character that has the capacity of injuring his reputation. Yet other statements, such as " I know John Kerry is lying about his first purple heart because I treated him for that injury," have been alleged to be falsehoods and, if so, are arguably actionable.
The most problematic question posed by the ad is whether a non-libelous falsehood becomes actionable when uttered in conjunction with another factual assertion of uncertain accuracy that is harmful to Kerry's candidacy or reputation. Both statements must be taken together in context. Consider, for example, a statement by a speaker asserting that he "served with John Kerry and John Kerry lied about his wounds in order to get his first purple heart." Such a statement consists of two informational elements. The first element is that the speaker served with Kerry and the second is that Kerry lied about his wounds to get a purple heart. Assuming that the first statement is false, it is about the speaker, not about Kerry's conduct, and, standing alone is not libelous. Assuming that it is impossible to establish the truth or falsity of the assertion that Kerry lied about his war wounds, does the entire statement containing both elements become subject to liability because the false statement concerning the basis for the speaker's knowledge leaves the reasonable listener with the view that there is strong evidence supporting the assertion that Kerry lied to get his medal? It is, after all, a statement indicating that the speaker is in a special position to evaluate Kerry's conduct.
There is a disagreement whether, under the leading libel case New York Times v. Sullivan 4 and its progeny, this kind of falsehood may be punished. In other words, is it enough under the First Amendment that a falsehood, which is not itself libelous, inflicts harm to a public figure's reputation when uttered in conjunction with another statement of uncertain accuracy? Or, instead, must the assertion that is demonstrably false also be libelous in and of itself? 5
A Damage Suit for Libel?
Overall, it is clear that, according to the leading case of New York Times v. Sullivan, 6 Kerry could sue for damages on the ground that he has been libeled if he can prove that the Swift Boat Veterans for Truth organization knows that its ad is false, or if he can prove that the ad is being published or broadcast with reckless disregard of whether it was false or not. 7 With respect to some assertions in the ad that Kerry disputes, it may be difficult for him to meet this burden of proof. For example, the ad claims that "Kerry lied to get his bronze star." Although Kerry's account of what occurred is corroborated by others, including Jim Rassman who has described how Kerry saved his life while under enemy attack, that account is disputed by the veterans who appear in the Swift Boat ad. 8 If neither side's version of events can be verified, Kerry cannot prevail in a libel suit.
Evidence of knowing or reckless falsity is more easily available for the "I served with John Kerry" assertion, assuming that this non-libelous, allegedly false statement is one for which liability can attach. Since the speaker knew that he did not serve in the same swift boat as Kerry, if that is the meaning of the assertion, then it was a knowing falsehood. The speaker cannot defend on the ground that he personally did not attach the "in the same boat" meaning to his assertion, because, while the speaker's subjective understanding of the accuracy of his statement may be evidence of whether he spoke with the requisite constitutional malice, 9 the meaning of the statement is determined objectively, by the reasonable member of the audience, not by the speaker's subjective intent in this regard. 10
Nonetheless, as explained above, there is a division of opinion over whether, because of its context, the false, non-libelous statement is actionable.
A Complaint to the Ohio Elections Commission?
A candidate or anyone else who believes that the Swift Boat Veterans for Truth ad contains false statements also has the option of filing a complaint with the Ohio Elections Commission alleging a violation of provisions of Ohio Revised Code § 3517.21(B). According to § 3517.21(B), many false statements about a candidate are unlawful. These would include false statements that the candidate is guilty of criminal conduct or is mentally ill, as well as false statements about a candidate's voting record, educational background, or employment history. 11 However, the only relevant provision of the Ohio election statute to the Swift Boats Veterans for Truth ad is Ohio Revised Code § 3517.21(B)(10), which provides that "[No person shall knowingly] [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, if the statement is designed to promote the election, nomination, or defeat of a candidate." Thus, with respect to false statements about candidates, § 3517.21(B)(10) incorporates the standard articulated by the Supreme Court in New York Times v. Sullivan, 12 but does not explicitly require that the statement be libelous.
However, notwithstanding the language of § 3517.21(10), the Ohio Supreme Court has not explicitly ruled on the question of whether it should be read literally to apply to non-libelous false statements about candidates, or instead, in order to avoid potential constitutional difficulties, should be narrowly construed to apply only to libelous falsehoods. The authors of this entry are split over whether the Ohio Supreme Court is likely to adopt such a narrowing construction.
Finally, it should be noted that the primary difference between the filing of a libel suit for damages and the filing of a complaint with the Ohio Elections Commission would be that the person libeled would be the only one who could file the lawsuit while Ohio election statutes provide that "any person, on personal knowledge" of a violation of any Ohio law governing elections may file a complaint with the Ohio Elections Commission. 13 This distinction, however, might have great practical significance. John Kerry is the only person eligible to be a plaintiff in a libel action based on libelous statements made about him. However, any person who has personal knowledge of a violation of the Ohio Election Code is eligible to file a complaint with the Ohio Election Commission.
2. See www.disinfopedia.org/wiki.phtml?title=Swift_Boat_Veterans_for_Truth last viewed on August 9, 2004
3. As a general rule, the meaning of such statements is determined according to how a reasonable person would understand them.
4. 376 U.S. 254 (1964).
5. Boyce & Isley v. Cooper, 568 S. E.2d 893 (N.C. App. 2002), seems to suggest that a false statement about a candidate's private life may be actionable without regard to whether or not it was genuinely libelous. But in Milkovich v. Lourain Journal Co., 497 U.S. 1, 20 (1990) n. 7, it was observed that "the issue of falsity relates to the defamatory facts implied by the statement. (Italics in original).
6. 376 U.S. 254 (1964).
7. Id. at 279-280.
9. Milkovich v. Lourain Journal Co., 497 U.S. at 20 n. 7.
10. See generally McKimm v. Ohio Elections Commission, 89 Ohio St.3d 139 (2000).
11. See, for example, Ohio Revised Code § 3517.21(5)&(6).
12. See endnote 4 above.
13. Ohio Revised Code § 3517.153.