Tuesday, October 23, 2012


Targets of Cayetano’s lawsuit will have to determine the risks of continuing their campaign ads

by Larry Geller

Gov. Cayentano’s lawsuit against the Pacific Resource Partnership and specific indiviudals alleging libel and slander related to their campaign ads is not “disappeared news.” There’s good coverage and discussion on the Civil Beat website and on Ian Lind’s blog:

Both articles include access to the complaint. Both discuss the potential national implications of the suit, particularly if Cayetano should win. Here’s a snip from the complaint that relates directly to Citizens United:

Defendants are parties who are taking advantage of recent court rulings declaring the expenditure of large sums of corporate money to be "speech" entitled to First Amendment protection. But free speech is always subject to the limits of the law of defamation. Accordingly those persons who claim their expenditures are "speech" must be held accountable when their "speech" enters an area that is not protected by the First Amendment - false and defamatory speech made about a public figure with knowledge of its falsity or a high a degree of awareness of its probable falsity. Thus, Plaintiff herein sues not only those who wrote and published the speech, but also those who have financed and funded it under the guise of a judicially-created "free speech" exception to traditional campaign spending laws. The courts have permitted this new system of "money as speech" to arise and Plaintiff now asks the Court to set the outer limit of such "speech" and rule that it does not include financing the publication of false and defamatory statements that the financing parties know to be false and defamatory and/or publish them with an actionable state of mind. Accordingly, those persons and entities that fund such false and defamatory statements must face accountability in the same way that authors and publishers of such false and defamatory statements have traditionally been held accountable.

It will be interesting to see, however, if the offending television ads “disappear” or not.

Like the notorious SLAPP suits used against non-profits (“Strategic lawsuit against public participation”), a lawsuit such as this will have some immediate effect on its targets. For one thing, they (PRP and the individuals named) will have to devote some energy and expense to reviewing the lawsuit with their own attorneys and assess the risk of continuing the advertising in question.

They might decide to stop the advertising.

Or not. We’ll just have to see how it goes.

As the Civil Beat article describes, there could also be risk to the TV stations that ran the ads. Will they consult with their attorneys and decide to refuse future PRP advertising similar to the ones in question?

Perhaps nothing will change. Or perhaps something will.


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