raider:

Said laws DO apply - but politicians, as other 'public' officials or entertainers - get a LOT of leeway in what they can say about others. One is assumed to open oneself to criticism when one runs for public office (or goes into the entertainment field), since one is trying to attract attention in the furtherance of ones career 9as opposed to all others, who do NOT seek such scrutiny and publicity).

Slander is an especially otugh nut, since you have to prove not only the falseness of the accusiation, but:

(a) that the speaker KNEW IN ADVANCE that it was false, and...

(b) That the intent was purely malicious and defamatory (as opposed to information-spreading).

And, of course.....

(c) said suits are EXPENSIVE and TIME-CONSUMING - and only keep the derogatory information in the public eye far longer than it would remain if it were ignored (or left alone).

In short, like speeding and jaywalking - it is a crime with multitudinous violators, but few punished offenders.

Thanks for the info. Personally, I think we could have a FISA style court to combat malicious lies that clearly meet the criteria mentioned above.

Aside from the reasons already stated, if a candidate actually filed suit during the course of the campaign, the press would give itself permission to trumpet the allegations 24/7.

The main power of getting the negative stuff out there—even if it's demonstrably false—is the unfortunate tendency of the human brain to retain as true the first thing said (especially if it's repeated many times) even in the face of clear, unqualified contradiction and correction.

This is the genius of Rove: Unless a person actually makes the effort to go through the process of "unlearning" the falsehood, that's what remains. But it has to be consciously. (And that's sooooo much work!) Hence, you've got the people who still believe in Iraq's WMD, Saddam's al Qaeda connections, and—alas—Obama's Muslim association.

Though the brouhaha with Rev. Wright should have helped that, somewhat. That painted Obama as a Black Liberation Christian. The least that should have caused was some kind of contradictory circuit overload of those lazy little brains out there.

Here in Washington, the Supreme Court recently struck down a law that fined a candidate for making false and malicious claims against her opponent. The Justice on the court paraphrased Brandeis (I believe) who said something to the effect that to combat bad speech you needed not less speech, but more. In Washington state, as the dissent noted, political candidates can now lie with impunity. (Truth is, they always could. Now they just know it.)

New York Times v. Sullivan, decided in 1964, is the famous case dealing with libel of a public figure. In order for a public figure to prevail on a claim for libel, the person claiming to be libeled would have to prove "actual malice" -- that is, that the person making the alleged libelous statement knew it was false or recklessly disregarded its falsehood. Not only must the plaintiff show actual malice but must do so by clear and convincing evidence. The plaintiff must also show that he/she suffered damage to his reputation because of the falsehood. The barriers are high, as well it should be. The rule is grounded in the premise that criticism of public officials is fundamental to our society; therefore, mistakes are tolerated as a byproduct of free speech and vigorous debate. Also, the standard is higher for public officials because they have a public platform to address false accusations. The Sullivan rule is the most important press freedom decision in our nation's history.

Even if a politician could get past these formidable hurdle it would be disastrous on a practical level to sue for libel. Could you imagine the reaction from the press, eager to guard its prized freedom? This is to say nothing for the impression of a candidate attempting to squelch debate. How would the candidate be able to prove damages when he has the largest soapbox in the world from which to confront the alleged falsehoods? The candidate would have to participate in lengthy pretrial discovery (remember Clinton?) with one of the issues being his reputation - in other words, open season. The publicity from the lawsuit would likely magnify the allegations. And of course, if the candidate did not prevail, as seems likely, many people would have the perception that the speaker had been correct, or at least justified.

All in all, it's not a good strategy.

This might be a case of 'Be careful what you wish for.' Given the amount of rage, fury and hate (I've contributed a bit myself) that ends up in the forum, I think we all should be glad that the standards for successful libel and slander are so high.

Oops. My first double post. Sorry.

Thank you Armchair Guerilla for finally answering her question. Just to clarify, reconfirm, a few things:

1. Slander is a defamatory statement made in transitory form, as in a statement spoken in a public place. Libel is a defamatory statement made in a fix form. It's a distinction without a difference, and the same rules apply to both torts, so we generally refer to them collectively as "defamation." I think the only reason we hold on to the distinction is because the words "libel" and "slander" evoke a much more visceral response than the more clinical sounding "defamation." Some kinds of statements are deemed defamatory per se, meaning all you have to prove is that the statement was made to prove your case. These ususally involve statements alleging criminal conduct, adulterious or deviant sexual conduct, assertions that someone has a "loathsome" disease (basically either an STD or something communicable and fatal), or misconduct and impropriety within the course of one's profession or business. Otherwise, statements are deemed defamatory per quod meaning you've got prove the statement was made and introduce context evidence explaining why it was defamatory under the circumstances.

2. Truth is an absolute defense to this tort (although not to a claim of invasion of privacy, which is not actionable in many states), meaning the burden of proving the statement was true is on the defendant.

3. In New York Times v. Sullivan, the Supreme Court held that where the statement was made about a public figure, or in the context of a matter of public interest or concern, the plaintiff must also show "malice," i.e. evidence from which the jury can reasonably infer that the defendant either that the defendant either knew the statements were false or made them with reckless disregard to their truth or falsity.

In cases where the truth or falsity of the statement is not intrinsically within the defamer's knowledge, this can force the plaintiff to prove the statement was false.

4. Sinclair's statements are clearly defamatory per se and were made with legal malice as required by Sullivan. Additionally, when the slander takes the form of "he and I did x together, the jury can assume the guy knew he was lying and thus can infer malice from the mere fact the statement was made, unless the defamer can prove it was true. Likewise, most of the Swift Boat Veterans for Falsehoods statements were libel per se and actionable notwithstanding Sullivan to the extent they were claiming to have been participants. The reasons Kerry didn't sue were political and personal, not legal. Likewise Obama.

It's clear that the situation is murky for a candidate to sue under slander or libel laws, even if he or she could win. I think the bigger issue for me is to look at where the public good is compromised by politically motivated lies. I've said it before. I think it subverts the intention of our democracy. It is obviously critical to a fair democratic contest that the electorate have true information. Lying and defaming an opponent have proved successful means of swaying and affecting the outcomes of elections. In that, it's bigger than a "public figure." It's all of us who suffer.

So to me, this is an issue of, in a sense, national security, and I although I know the arguments would be complex on both sides of the issue, at this point it's not even being discussed. There are a lot of elements of our system of government that need to be examined. I think this is one of them, and I encourage that discussion to consider not just the laws that exist now, but the approach that could be taken to ensure that our elections are not decided by lies such as the swift boat accusations, which were so effective in stealing the election in 2004 that "swift boat" has become a verb. To me, this is a national tragedy.

The problem with passing any new 'law' that would deal with lying politicians is that it would have to be passed by............poiticians.

:)

For an example of lawsuit futility, Obama could never win a lawsuit for defamation against those who say he is currently a Muslim because he could never prove reckless disregard for truth or falsity -- the defendants could show good faith confusion given that his father was a Muslim, under sharia he became a Muslim at birth because of his father, he attended mosque with his Muslim stepfather in Indonesia, Barack and Hussein are Arabic names, Trinty sells Nation of Islam DVDs, and Hamas and Louis Farrakhan endorsed Obama.

Also, he'd have to prove that being called a Muslim is defamatory.