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Political Analysis: When Do Political Attacks Become Libelous?

Editor's Note: In this discussion, we quoted details about author Larry Sinclair. Those details came from an article on Politico.com. We neglected to attribute or to vet those details. We regret that we failed in our obligation to fully investigate that issue before reporting on it.

Audio

As President, Barack Obama is a target for all manner of criticism both political and personal. But when do allegations against the President, or any public figure, cross the line and become libelous? KPBS Political Correspondent Gloria Penner discusses the protections and limits of the First Amendment.

MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. Which of these words do not belong together: murder, cocaine, sex, the White House? If you said the White House, then you have not read the new book by Barack Obama-nemesis, Larry Sinclair. The book expands on some of the most scandalous claims made by Sinclair during last year's presidential race. For awhile, the Obama campaign debunked each allegation of homosexual activity, drug use and murder made by Sinclair, but then decided not to acknowledge the unsubstantiated claims at all. Now that Sinclair has published a book filled with allegations against the president of extramarital sex and illegal activity, including the murder of a former lover, it got KPBS political correspondent Gloria Penner wondering just how far can an author go in writing a defamatory book? If the accusations are not true, can the president sue? And when do statements made about public figures become libelous? Gloria is here now with the answers. Good morning, Gloria.

GLORIA PENNER (KPBS Political Correspondent): Oh, good morning, Maureen. What an interesting subject we have.

CAVANAUGH: Well, tell us a little bit more about these accusations made in this book by Larry Sinclair. Is there a storyline? Does he have a whole tale to tell?

PENNER: Not really. I mean, there’s no storyline. It’s simply a chronology of what he considers charges against Obama and these include, as you said, that he used and sold cocaine, that he engaged in homosexual affairs, and he played a role in the December 2007 murder of his alleged former lover, Donald Young, the choir director of Obama’s Chicago church, just days before the 2008 Iowa caucus. So, I mean, if we would think of a storyline it would really be the storyline leading up to the election of the president. He explains how the Obama campaign, David Axelrod, for example, and Obama himself used David Young to contact and seek out information from Sinclair, who he had told of Obama’s crimes and actions. But interestingly enough, he also charges that Vice President Joe Biden’s son, Beau Biden, who is the Delaware Attorney General, issued an arrest warrant on fabricated charges in an attempt to discredit Sinclair’s national press club news conference, which Sinclair arranged and never took place.

CAVANAUGH: Now, this is – this book is not the first time…

PENNER: No.

CAVANAUGH: …that Larry Sinclair has made these accusations. How has Barack Obama responded to them?

PENNER: Well, he really hasn’t. Sinclair is familiar to political junkies and reporters as the source of these outlandish allegations about the senator. He appears to be the sort of person who is at the margin of every presidential campaign. We’ve seen it before. Presidents George W. Bush and Bill Clinton had their own obscure accusers with dramatic allegations but as the old media—I mean old media meaning TV, radio, print—ignores him, Sinclair has taken full advantage of the internet and has a video in which he makes his claims that have been viewed more than 900,000 times on YouTube. So there are people there who are watching. At this point, we look back at his record and he does have a 27-year criminal record with a specialty in crimes involving deceit. It includes forgery charges in two states. He had a 16-year jail sentence from one of them. He has an outstanding warrant, according to the Pueblo County, Colorado sheriff for forging an acquaintance’s signature and stealing her tax refund. So, you know, he basically does address his own criminal past but his story has been generally ignored by the mainstream media because he can’t substantiate his allegations against the president.

CAVANAUGH: Now, for the sake of this discussion, let’s assume that Larry Sinclair’s claims against President Obama are unfounded. You spoke with These Days legal analyst Dan Eaton about the issue of libel when public figures are involved. What did you find out?

PENNER: I did. We talked about the landmark New York Times v. Sullivan decision, and that actually established the standard for actual malice when we talked about public figures, and that happened in 1964 during the civil rights era which allowed free reporting of the civil rights campaigns in the southern part of the United States. Now, it was one of the key decisions that supported the freedom of the press and the actual malice standard requires that the plaintiff, that’s the one who had the bad things said about him, in a defamation or libel case has to prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. That’s a very high burden of proof on the plaintiff and very difficult in proving. Essentially, what’s going on inside a person’s head, and these cases generally involve public figures.

CAVANAUGH: It’s part of how highly we value the first amendment in the United States, isn’t that where this has come from?

PENNER: Exactly, it does. That’s – it’s a defense of the first amendment, freedom of speech. And if Barack Obama had to prove, if he took Sinclair to court, he would have to prove that Larry Sinclair actually had malice when he made these statements. So I did ask Dan Eaton, the These Days legal analyst, what is malice? And this is what Dan said.

DAN EATON (KPBS Legal Analyst): Malice means that you have to prove in a civil suit that the statement was made knowing that it was false or with a reckless disregard for whether it was true or not, and that is a very tough standard to meet, indeed, which probably explains why public figures don’t often sue for defamation. Another reason the public figures do not sue is frankly because the public figure presumably is going to be more famous than their accuser. You tend only to perpetuate and reinforce the very statements you wish had never been publicized in the first place. Another reason is because these suits are very expensive. Notwithstanding the fact that it’s very tough to prove these charges, it is a very expensive undertaking and it’s a tremendous distraction of time and effort that a public figure presumably would rather spend on doing those things that made them public figures in the first place.

PENNER: So you can see why it’s pretty tough for a public figure to spend all this time and money and to try to prove that there was actual malice, especially since the public figure is so much more likely to be known by the public rather than the accuser. And why give the accuser this platform?

CAVANAUGH: Now, as you said, that New York Times v. Sullivan decision from the U.S. Supreme Court came about in the 1960s. Before then, there was a whole different world…

PENNER: It was.

CAVANAUGH: …for public figures and suing for libel. Tell us about that.

PENNER: Well, I actually went back as far as I could in the archives to see about other lawsuits involving famous figures, and I found one in which President Franklin D. Roosevelt was attacked when he was a candidate for vice president on the Democratic ticket. And he brought criminal action against the editor of the Providence Journal, who charged that Roosevelt had destroyed or sequestered records of the Navy department when he was Undersecretary of the Navy. Roosevelt charged that the editor was set up by the Republican Party. Roosevelt was running as a Democrat. And he tried to recover a half a million dollars in damages. In those days, half a mil was a lot. I don’t know if he won. I went through the archives to try to find out what the disposition of that case was and was never able to find it. But I enjoyed what his lawyer said. His lawyer said, loose notions prevail with respect to the privilege of repeating false charges against public men in a political campaign. There exists no privilege to assail falsely a man’s personal honor.

CAVANAUGH: Aha.

PENNER: And I thought that really set it up.

CAVANAUGH: That’s wonderful. That’s a great oratory of the past.

PENNER: It’s true.

CAVANAUGH: Now, Larry Sinclair’s accusations against President Obama are certainly not the only personal accusations being made against the president. What are some of the other issues that have come up and been promoted by Obama’s political enemies? And do any of them rise to the level of libel?

PENNER: Well, here are those that you’ve probably already heard and some of them have nothing to do with defamation or character, but that he was born in Kenya, that he’s a Muslim, you know, and that’s certainly not defamation of character, that he’s a Christian radical who hates America, that he was born in Libya, that he’s a socialist or a fascist or a communist, that he supports death panels, that he would deny Medicare for seniors, and, again, whether they rise to the level of libel, again, malice would have to be proved. And Dan Eaton has another explanation why we don’t see many lawsuits by public figures, especially presidents.

EATON: You have to realize that public figures, especially people as prominent as President Obama, have something that their accusers really don’t and that is a bully pulpit of a tremendous magnitude. And, therefore, they are in a uniquely well-situated position, separate and apart from the court, to set the record straight because they have the public attention. That is why they are public figures, after all, and, therefore, a legal remedy may therefore be a very poor substitute for the remedy they already have at their disposal, which is the continued attention of the public and in President Obama’s case, a willingness for at least some segment of the public to believe them over their accusers.

CAVANAUGH: Well, I’m interested in hearing what Dan Eaton has to say, I wonder how that applies to private citizens if a false statement hurts their reputation or their career. And let’s talk about the case of former Orange County Assemblyman Mike Duvall. He made statements about having an affair with a lobbyist from SDG&E. Tell us about that situation. That happened earlier this year.

PENNER: Well, yes, a Sempra Energy lobbyist, her name was Heidi Barsuglia, she was the subject of sexual boasting by former Assemblyman Mike Duvall, boasting which was caught on tape in a legislative committee hearing in which Duvall is detailing his sexual encounters with two lobbyists. He resigned. She returned to work. The Justice Department didn’t file any charges against Duvall and it looks as though there won’t even be an ethics inquiry by the legislature, so this may fade away unless Barsuglia takes legal action, which she might. Now the lobbyist denies any sexual affair and she’s described as examining all her legal options, so the question is what legal options does she have? And here’s what Dan’s take is on whether the lobbyist might sue.

EATON: Because a public figure is making the statement doesn’t make the person about whom he is making the statement a public figure. In fact, the lobbyist herself may very well be a private figure subject to all of the protections under the lower standard that applies to slanderous and libelous statements about private figures. Just because a public figure is making the statement does not mean the stronger standard of New York Times versus Sullivan applies. That standard only applies when the allegedly defamatory statement is made about the public figure. Is a lobbyist really a public figure? Well, that is highly debatable, in my opinion. And if she is, in fact, a private figure and if, in fact, these statements were not true or substantially true, that is to say the gist was not true—that’s what substantial truth means—then she may very well pursue a claim for defamation.

CAVANAUGH: So I guess in at least this case, private citizens have a bit more rights than public figures.

PENNER: They do. But they would have to establish that the defendant, in this case Mike Duvall, intentionally made a false and defamatory statement, that the statement concerned the plaintiff, that the statement was made to at least one third party—and that was on tape, of course—and the statement caused harm to the plaintiff. Those are the four areas that would have to be proven.

CAVANAUGH: This has been fascinating. You’re going to be writing more about this in your blog…

PENNER: I am.

CAVANAUGH: Okay, terrific. Thank you so much.

PENNER: You’re welcome, Maureen.

CAVANAUGH: I’ve been speaking with Gloria Penner, KPBS Political Correspondent, host of Editors Roundtable and San Diego Week. You can read her weekly blog, it’s called Political Fix on our website at KPBS.org. Stay with us. Coming up on These Days, a conversation with Senator George McGovern. We’ll be back in a moment here on KPBS.

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