Some sue, but unfettered speech is part of politics

Democratic gubernatorial candidate Joy Hofmeister last week vowed to take legal action against Gov. Kevin Stitt, a Republican, for allegedly lying about her record and views. She then went on to accuse him of creating a sanctuary for “Chinese landowners and violent criminals.”

Stitt, meanwhile, voiced a more resigned — and historically more realistic — view when asked about ads and billboards calling him "America's most corrupt governor."

Stitt said, "There's really no response to it because people can put whatever they want — they can make up lies. If they have the money, they can run any kind of commercial they want."

He's right. There is no truth-in-advertising law for political campaigns, though bruised candidates often act like there is and threaten to sue an opponent or media outlet.

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Candidates who throw their hat in the ring must be ready for a fight without any real referees except fact-checking organizations. Distortions, half-truths and outright lies come not just from other candidates but from people and nonprofits hiding in the shadows created by the U.S. tax code.

Voters are the ultimate judges in the fights.

First Amendment shields political speech, US Supreme Court has ruled

The U.S. Supreme Court has protected political speech under the First Amendment in numerous ways, and Oklahoma courts have followed that guidance in their own decisions.

“When so called ‘public figures,’ that is individuals in the public eye, such as political candidates, sue for libel or slander, their rights to recover are severely limited,” the Oklahoma Supreme Court said in a 1997 case.

The state court’s ruling came in a libel case involving two judicial candidates in Garvin County.

Today, 25 years later, a judicial race in Garvin County has been swamped with direct mail pieces that say one of the candidates in the nonpartisan race is backed by Democratic President Joe Biden and other prominent Democrats. The county is heavily Republican, and the candidate is a registered Republican.

Like much of the advertising in this political season in Oklahoma, the names of the people who financed the mail in the Garvin County judicial race are unknown. The so-called “political action committees” on the mailer have not filed reports with the Oklahoma Ethics Commission.

Laura McClain, the candidate targeted by the ads, has few options. She could file a lawsuit, but the election is Tuesday, the mailers already have been distributed and it could take a while to track down anyone connected to sending them.

Earlier this year, a state Senate candidate sued a dark money group for libel and slander over an ad that cited court documents and accused him of breaking a dog’s jaw. According to the suit, filed in Kingfisher County, the allegations came from a protective order filed by the candidate’s former wife and were disproved.

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No one connected to the dark money ad has responded to the lawsuit, and no person associated with the group has been named on the docket.

Dark money groups have exploded in the past several years as more people and organizations seeking to influence elections have funneled money through nonprofit corporations classified as “social welfare” groups under section 501(c)(4) of the federal tax code. Those groups don't have to report their donors publicly.

New York Times casse

The government — including the U.S. Supreme Court — has a much different posture toward commercial speech than for political speech, and there are regulations about what certain businesses and industries can say.

The Federal Trade Commission Act generally requires that commercial advertising must be “truthful and non-deceptive” and that advertisers have “evidence to back up their claims.” Specific advertising regulations apply to the financial industry, lawyers, tobacco and liquor sellers, and others.

Like other states, Oklahoma has consumer protection laws against “deceptive, fraudulent or unfair advertising or sales practices.”

Political candidates and organizations that sponsor ads clearly don’t have to meet those standards.

The U.S. Supreme Court set the current parameters for libel in the political realm in the 1964 decision New York Times v. Sullivan, which made it tougher for a public figure to win a defamation lawsuit.

The high court analyzed a case from Alabama involving an ad published in The Times seeking donations to help with the legal defense of the Rev. Martin Luther King Jr. A public safety commissioner in Alabama sued the newspaper and several ministers who placed the ad, claiming he was libeled and that the ad contained inaccuracies.

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In a unanimous decision, the Supreme Court held that, “A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves ‘actual malice’ — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”

Thirteen years later, in a libel case brought by a sheriff’s candidate against a newspaper over a letter to the editor, the Oklahoma Supreme Court said, “Before New York Times, malice, in its generic sense, was not part of a cause of action in libel … Now, the phrase ‘actual malice’ is a federal constitutional prerequisite to the recovery by a public official or person involved in a public controversy.

“The New York Times rule clearly means that in such a case, the defamatory statement must be made with knowledge of its falsity or with reckless disregard of whether it was false or not.”

U.S. Supreme Court Justice Clarence Thomas wants the high court to revisit the Times v. Sullivan "actual malice" standard. In a dissent in June, Thomas complained about the court not taking up a defamation case involving a religious organization that sued over being designated as a hate group.

"This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups 'to cast false aspersions on public figures with near impunity,'" Thomas wrote.

Reckless disregard for the truth

It is still possible to win a libel case over statements made in a political campaign. In 1997, a Cleveland County jury decided that a libel case filed by a political candidate met the standard laid out in The New York Times decision.

The verdict came against a Democratic member of the state House, Wallace Collins. In Collins’ race a year earlier against Republican Steve Byas, Collins accused Byas of believing that the federal government committed the bombing of the Murrah building in Oklahoma City in 1995.

Byas called Collins and told him that the statements were false and that he should retract them. Collins couldn’t point to any evidence to back up his claims but kept making them and narrowly won an election that polls had shown him losing.

Byas sued, and the jury awarded him $50,000 in actual damages and $32,000 in punitive damages.

The Oklahoma Court of Civil Appeals upheld the verdict.

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“Based on our review of the record, we conclude by any standard, there exists evidence to conclude that Collins was put on notice the allegedly libelous statements were demonstrably false; that despite being so informed, he continued to publish the statements with reckless disregard for the truth; and that he entertained serious doubts concerning the truthfulness of the statements,” the court said.

The Oklahoma Supreme Court then let it stand.

There have been other, mostly unsuccessful attempts in Oklahoma to sue candidates and campaigns for libel, including one in which former Gov. David Walters and his press aide were sued by the 1990 Republican nominee for governor, Bill Price, over a campaign press release that accused the GOP candidate of “gouging consumers at the gas pump while working as a federal lawyer.”

An Oklahoma County district judge granted summary judgment in Walters’ favor, but Price appealed to the Oklahoma Supreme Court.

The court ruled in favor of Walters, but it was a 5-4 decision, with the lines sharply drawn. The majority and dissenting opinions in the case seem to encapsulate the debate about the extent of free speech in the political realm.

Former Justice Alma Wilson dissented, and wrote that “reasonable persons could conclude that the (Walters campaign) published a defamatory statement that was false, and unprivileged.”

Wilson wrote, “This state ought to be the vanguard in protecting its public figures against outright falsehoods. Free speech was intended to protect the public by allowing issues to be freely and vigorously discussed.

“Grave public injury is certain if this state tolerates reckless disregard for the truth in political campaigning. Such is certain to diminish public confidence. Those who seek public office must be responsible for their defamatory statements that injure campaign opponents and that egregiously destroy the integrity of our representation. For these reasons I would reverse the judgment of the district court and remand for trial.”

But the majority found the facts in the press release to be “substantially accurate” and the campaign’s statements about those facts to be protected opinion.

“The concluding quotes from Walters and references to ‘skeletons’ in Price's closet are more of the same — personal opinion and hyperbole.

“These kinds of rhetorical expression of opinion are protected, and rightly so, because of the ‘realization that there exists a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that the discussion may well include vehement, caustic and sometimes unpleasantly sharp attack on public officials.’”

Contributing: Staff writer Carmen Forman

This article originally appeared on Oklahoman: Truth in political advertising is not required