UPDATES & ANALYSIS
Robert Bork v. Antonin Scalia, Tom Harkin, and the Iowa Supreme Court’s upcoming decision in Bertrand v. Mullin
by Ryan Koopmans | January 28, 2014
By Ryan Koopmans
Last Thursday, the Iowa Supreme Court heard oral argument in Bertrand v. Mullin and the Iowa Democratic Party, a defamation case that stems from a state senate race out of Sioux City. Shortly before the November 2010 elections, Republican Rick Bertrand sued in response to an ad that his opponent, Rick Mullin, and the Iowa Democratic Party ran against him.
An ominous-sounding voice (you know the one) told the audience that “Bertrand doesn’t want you to know he puts his profits ahead of children’s health.” “Bertrand,” the voice said, “was a sales agent for a big drug company that was rated the most unethical company in the world.” And the “FDA singled out Bertrand’s company for marketing a dangerous sleep drug to children.”
The “big drug company” was Tekeda Pharmaceuticals; it had been warned by the FDA to stop marketing its insomnia drug to children; and Bertrand was a Tekeda sales agent there from 1999 to 2009. But Bertrand argues that the ad insinuates much more. The phrase “Bertrand’s company” and the use of the word “profits” suggests that Bertrand owned the company—or some other company that was targeted by the FDA. And the accusation that Bertrand put “his profits ahead of children’s health” implies that Bertrand sold the insomnia drug—which wasn’t true.
A jury agreed with Bertand and awarded him $231,000 ($31,000 from Mullin and $200,000 from the Iowa Democratic Party). But the judge reduced the award to $50,000, so both sides appealed. Bertrand argues that he should get the entire $231,000 and that the district court should have allowed the jury to award punitive damages. On the flip side, Mullin and the Iowa Democratic Party claim that this case never should have gone to the jury because—as a matter of law—the ad was not defamatory.
The Iowa Supreme Court could decide the case on several different grounds. The parties are arguing about jury instructions, whether the defendants made proper objections, and whether Bertrand proved that Mullin had the malicious intent that the Constitution requires in a defamation case like this one.
But the threshold question—and perhaps the most interesting one—is whether the First Amendment even allows a politician to sue for implied falsehoods like this that happen during the throes of a campaign. If the jury’s judgment in this case is affirmed, will it chill protected political speech? Will well-heeled candidates use lawsuits (and the costs that go with them) to stifle the up-start and low-budget competition?
Or will the jury’s judgment of this offensive ad properly curb what many believe to be a degrading political climate? And will that encourage more qualified candidates to put their name on the ballot?
These are the questions that the justices were wrestling with during last Thursday’s oral argument. And they’re the same questions that are currently being debated on Iowa’s blogs and editorial pages.
Both groups (the justices and the public) seem to be of two minds about it. Some think that Bertrand’s victory is just what we need; others see this case as a slippery slope, at best, and an incursion on the First Amendment, at worst.
Of course, none of this is new: This very same debate played out twenty-five years ago between Robert Bork, Ken Starr, and Ruth Bader Ginsburg, on the one hand, and Antonin Scalia and William Rehnquist on the other. And soon after, the outcome of that debate helped decide an Iowa case against a freshman senator named Tom Harkin.
In 1978, the University of Maryland selected Bertell Ollman to lead its government and political science department. Ollman was a self-identified Marxist, and conservative columnists Rowland Evans and Robert Novak weren’t pleased with Maryland’s choice. They published an op-ed in the Washington Post that criticized Ollman, not necessarily for his Marxist ideas, but for what they believed to be his ultimate intent: the indoctrination of his students with those ideas.
Ollman sued, alleging that the op-ed contained several defamatory statements, most notably that “Ollman has no status within the profession, but is a pure and simple activist.”
A federal district court dismissed the case and Ollman appealed to the United States Court of Appeals for the D.C. Circuit. That court is known as the second most powerful court in the land, and the murderers’ row of judges who heard the case proves the point: then-Judge Scalia, then-Judge Ginsburg, then-Judge (and former Independent Counsel and current Baylor president) Ken Starr, and Judge Bork, among others.
In December 1984, the full court decided, by a 6-5 vote, that the alleged defamatory statements were opinions, or at least opinionated enough to warrant First Amendment protection.
Judge Starr wrote the opinion for the court, though he didn’t command a majority. In his view, there were four factors that distinguish fact from opinion, and thus determine whether the First Amendment applies: (1) the precision of the statement (the more imprecise the language, the more opinion-like it is); (2) whether the statement is verifiable (if it can’t be verified, then it’s probably an opinion); (3) the linguistic context in which the statement is made (does the surrounding text suggest the author was stating an opinion or fact?); and (4) the social context in which the statement is made (opinion page readers expect more hyperbole than, say, church-bulletin readers).
Applying those four factors, Judge Starr—and the three others that joined him—concluded that Evans and Novak were merely expressing their opinion and were thus protected by the First Amendment.
Judge Bork, joined by then-Judge Ginsburg and two others, concurred with the judgment but wrote separately. Judge Starr’s multi-factor test was all well and good, Bork said, but this was the First Amendment they were talking about. It can’t be relegated to “verbal formulas” that mechanically apply to every case. The better practice, Bork thought, was to “revert to first principles.”
And first principles led Judge Bork to believe that Evans and Novak were covered by the First Amendment. He was swayed largely by context. And the context there was political. Ollman wasn’t just any political science professor; he was a political guy who was actively advocating his political philosophy. As a result, Bork thought that Ollman should have “expect[ed] that the debate will sometimes be rough and personal.”
But regardless of what Ollman expected, Bork also believed that the First Amendment demanded that Ollman and others like him have a “hide that tough” if that are going to engage in political debate: “[I]n order to protect a vigorous marketplace in political ideas and contentions we ought to accept the proposition that those who place themselves in a political arena must accept a degree of derogation that others need not.”
Twenty years earlier in New York Times v. Sullivan, the Supreme Court had upped the standard for defamation in cases involving public figures, requiring proof that the defendant made the statement with malice. But Bork didn’t think that Sullivan “provided in full measure the protection for the marketplace of ideas that it was intended to do.” And Bork, like Starr, thought that the broader public context in which the statements appeared—the editorial pages of the Washington Post—made it more likely that the audience would read the statements as hyperbole, and thus discount them as opinion.
Judge Scalia dissented. In his view, Sullivan gave adequate cover to the First Amendment’s principles, so there was no need to alter the opinion/fact dichotomy for political cases. “It is difficult to see what valid concern remains that has not already been addressed by first amendment doctrine and that therefore requires some constitutional evolving—unless it be, quite plainly, the concern that political publicists, even with full knowledge of the falsity or recklessness of what they say, should be able to destroy private reputations at will.”
As for Starr and Bork’s view that editorial readers think that everything is opinion, Scalia responded with this: “I am not prepared to accept this novel view that since political debate is always discounted, a decent amount of defamation in that context is protected by the first amendment.”
Ollman asked the Supreme Court to take his case but, over then-Justice William Rehnquist’s dissent, the court declined the invitation. To Justice Rehnquist, Judge Starr’s and Judge Bork’s opinions were “nothing less than extraordinary.” And by that, he meant “wrong.”
Now on to Tom Harkin. In 1984, he was Congressman Harkin and running to unseat Republican senator Roger Jepsen. The year before, Senator Jepsen had landed a staffer named James Secrist, a Lieutenant Colonel in the United States Navy. The appointment was somewhat controversial. Although he was working for Jepsen, Secrist was still being paid by the Navy. And that was somewhat odd, since Secrist was tasked with helping Iowa businesses get defense contracts.
The Des Moines Register criticized the appointment, and the topic also filled the pages of the Cedar Rapids Gazette, the Quad-City Times, and other papers around the State.
Congressman Harkin hadn’t commented on the story when Secrist joined Jepsen’s office in 1983. But when his campaign kicked off against Jepsen, Harkin issued a press release criticizing the appointment. Among other things, it said that Secrist had “been more successful at raising money for Sen. Roger Jepsen’s reelection bid” than “drum[ing] up defense contracts for Iowa businesses.”
Secrist sued Harkin for defamation. The press release, he argued, implied that Secrist was hitting up defense contractors for contributions to Jepsen’s campaign, something that Secrist denied.
Newly appointed federal district court judge Charles Wolle (who had come directly from the Iowa Supreme Court), threw out the case. “Opinion”, he wrote, “is the trademark of political rhetoric, even when set forth in narrative terms.” And in Judge Wolle’s mind, the press release was a “message entirely political in context and in wording.”
The Eighth Circuit agreed. Citing and quoting from both Judge Starr’s and Judge Bork’s opinions (which Judge Richard Arnold had adopted a year earlier in a case brought by South Dakota Governor Bill Janklow), the three-judge panel ruled that Harkin’s press release was protected speech: “While political commentators often decry the ‘low level’ of campaign tactics or rhetoric, the debate which accompanies public examination of candidates for public office lies at the very heart of the First Amendment and is essential to our democratic form of government.” And since Secrist, like Ollman, had found himself in a political skirmish, he should have expected strong political opinions. “It is difficult to imagine a public context,” the court wrote, “which would point more strongly toward ‘opinion’ than this one.”
The story doesn’t end there. A year after the Eighth Circuit’s 1989 decision in Secrist v. Harkin, Chief Justice Rehnquist and Justice Scalia had their revenge. In Milkohvich v. Lorain Journal Company, the Supreme Court ruled, in an opinion by the Chief Justice, that there is no “wholesale defamation exemption for anything that might be labeled ‘opinion,’” because “expressions of ‘opinion’ may often imply an assertion of objective fact.”
But the story doesn’t end there, either. The Supreme Court left open the idea that “loose, figurative, or hyperbolic language” as well as the broader context of a statement can still negate the implication that the speaker was stating facts as opposed to constitutionally protected “ideas” (read, opinions). To some degree, those are the factors that underlie Judge Starr’s and Judge Bork’s opinions, so it should come as no surprise that many courts today, including the Iowa Supreme Court, still follow Ollman’s basic framework.
Just last September, Manhattan federal judge Paul Oetken threw out a defamation lawsuit brought by Republican donor Sheldon Adelson against the National Jewish Democratic Council and its Chairman and CEO. In the heat of the presidential campaign, the NJDC called on Governor Romney to return Adelson’s donations because his money was “dirty” and “tainted.” To Adelson, dirty and tainted implied illegally obtained, and that, he said, was untrue.
Channeling Judges Starr and Bork, Judge Oetken looked at the broader public context in which the ad was run: “[T]he speech at issue was patently partisan and political. Indeed, the Petition was published by a self-proclaimed ‘Democratic’ organization, targeting Democratic-leaning voters, with the express purpose of eroding Governor Romney’s campaign coffers.” Given that context, Judge Oetken ruled that the ad was protected speech, quoting the Eighth Circuit’s decision in Senator Harkin’s case: “While ‘often decr[ied]’ by the media and others, ‘[t]he ‘low level’ of campaign tactics or rhetoric’ in this nation’s national campaigns is, now more than ever, a generally accepted fact of American life.”
Here’s where the story comes full circle (or at least back to Iowa). Judge Oetken is from Iowa. He went to Regis High School in Cedar Rapids and attended college at the University of Iowa (where he was recently named an alumni fellow). And when President Obama nominated Oetken to the federal bench in 2011, who helped him through Senate confirmation? Senator Harkin.
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