Did Doug Hoffman Just Cross the Line Separating "Dirty Politics" and "Defamation"?

Doug Hoffman recently posted a new fundraising letter on his blog. Now, I know some of you might be wondering why the guy is trying to raise money for an election that already happened. It's simple, really. He wants to keep fighting until he gets the seat in Congress that ACORN stole from him.

No, really, that's what he's claiming (if you click the link, make sure you note the url):

As evidence surfaces, we find out that reported results from election night were far from accurate. ACORN and the unions did their best to try and sway the results to Obamacare supporter Bill Owens.

(Also, note that he never gets around to specifying which unions. Apparently, that's because all of them were out to get him.)

The "evidence" that Hoffman cites in his letter, is unsurprisingly, nothing of the sort. He's taken the mistakes that were uncovered in the election night vote totals - which have narrowed the gap between him and Representative Bill Owens. The mistakes were the kind of thing that happen in every election - results get miscopied, phone problems happen, things go wrong. Most people see election night errors as a good reason to double check the results after the election. Hoffman sees them as evidence of the involvement of that fantastic wingnut all-purpose boogeyman ACORN:

Oswego County elections officials blame the mistakes on "chaos" in their call-in center that included a phone system foul-up, and on inspectors who read numbers incorrectly when phoning in results. This sounds like a tactic right from the ACORN playbook.

The skeptic in me, by the way, has to wonder just how much Hoffman's decision to claim ACORN stole his election was influenced by a recent poll showing that over half of Republicans believe that ACORN stole the 2008 election for Obama.

But that's not what I'm here to talk about. I'm here to talk about defamation. Or ask about it, anyway.

I'm not a lawyer, and I know that slander and libel are extremely complicated subjects, but the postscript at the end of Hoffman's letter is really making me wonder if he might actually have crossed the line:

P.S. I ran a different kind of campaign, one where Conservatives, Republicans, Libertarians, Tea Party and 9/12 activists rallied around. ACORN, the unions and Democratic Party were scared, and that's why they tampered with the ballots of voters in NY-23. Will you please contribute today so we can show them that fair elections are the Will of the People? Thank you.

[emphasis added]

"[T]hat's why they tampered with the ballots of voters in NY-23." That's not a carefully phrased Beckian accusation-phrased-as-question. It doesn't hint, hedge, qualify, or beat around the bush in any way. That's a simple declarative statement that ACORN, the Democratic Party, and (unspecified) unions engaged in criminal elections fraud. According to his spokesman, Hoffman will present evidence to support that accusation "when and if" they decide to challenge the election.

In the absence of anything that bears even a faint resemblance to "evidence", I'm left wondering if Hoffman went far enough to open himself to a civil defamation claim. Anyone got any ideas?

11 responses so far

  • daedalus2u says:

    If he puts it in writing under oath (which he has to if he wants to submit it to a legal authority), then it is perjury (unless it is true and he has the documentation to back it up).

  • Rev Matt says:

    IANAL*, AFAIK, but my layman's understanding is that the perpetrator has to know that what they are saying is false. Intent plays a role here, and if it cannot be demonstrated that he made the accusation while knowing that it wasn't true then I don't know that he'd be found guilty.
    *traditionally the L stands for Lawyer, but I'll accept Llama.

  • ErinSiobhan says:

    Not a lawyer or llama either, but when I was working in radio a few years ago I was given pretty strict rules regarding what I could say on the air. I can't vouch that this is absolutely correct, but I was told that it is absolutely illegal to publicly accuse someone of committing a crime that they have not been convicted of in a court. This is why you always hear news stories referring to "alleged" perpetrators. It seems to me that Hoffman is making a pretty direct accusation here, which, in my understanding, falls well into the category of defamation. Whether anyone with any authority will call him on it is a whole other story, though.

  • Also not a lawyer but my understanding is that defamation or libel claims against organizations and corporations are generally more difficult to claim than against people. If this was a statement that named a specific person there would almost certainly be a viable case.
    Rev Matt,
    The standard you are thinking about is "actual malice" but that only applies to public figures. If someone is a private figure (say an ACORN volunteer) then truth is what matters, not intent.

  • automandc says:

    IAAL (and have even done a big defamation case). There are a couple of issues raised here, and the following answer is mainly off-the-cuff, without any research or review, so take with a grain of NaCl.
    The first question in any defamation case is whether the alleged victim is a 'public figure' or not. The standard applied to the speech will be much different when the victim is a public figure versus when they aren't. Interestingly, the question of whether a corporation (or organization) is a 'public figure' has never been definitively answered by the Supreme Court. However, the general trend in the few cases deciding the issue is that corporations are automatically public figures. (IIRC, the 2nd Circuit has held this in at least one case, although it may not be a solid rule in that court). Since ACORN has been subject to intensive media scrutiny over the past 12 months, even if its corporate status didn't make it a public figure, there should be very little doubt that a court would determine that ACORN is a public figure (and even more so if it is considered only as a limited-purpose public figure w/r/t the controversy over alleged voter fraud).
    Having determined that the victim is a 'public figure', the standard applied to the speech (as mentioned by #4) is whether the comment was made with "actual malice" -- meaning it had to have been made either (1) with knowledge that it was false, or (2) with "reckless disregard to the truth." Courts have been very very reluctant to apply the "reckless disregard" part of the standard, and even in the few cases where it is applied, the conduct was very extreme -- much more than a mouthy politician talking out of his rear.
    I would put ACORN's chances of prevailing in such a suit as 'extremely remote', at best.
    One other point, raised in comment #1 above. If Hoffman (or his attorney) did put the comment into a legal pleading, while it might expose him to a perjury count (or expose a lawyer to a disciplinary action) -- the far more likely result would actually be to immunize the statement from defamation. Comments made in official court proceedings are expressly exempt from defamation claims. While other rules (i.e., the same perjury/disciplinary rules just mentioned) may create other standards for what can and can't be said in a legal pleading, the law of defamation does not apply. Otherwise, every defendant that won a lawsuit would turn around and sue the plaintiff for defamation based on the allegations in the original (now dismissed) complaint.
    (There is a rule for having defamatory material stricken from a legal complaint if it is not germane to the legal proceeding -- but the statements are still protected from defamation claims).

  • Steve says:

    Another great post Mike. Thanks for the clarifications automandc.
    Curiously, it turns out that Acorn "has no members, leaders or staff in NY-23 and had no involvement in the recent Congressional election there..."
    http://northcountrypublicradio.org/blogs/ballotbox/2009/11/acorn-we-were-not-in-ny-23.html
    Later.

  • Ginger Yellow says:

    I'd have thought that accusing an organisation of a serious crime without any evidence at all would constitute reckless disregard for the truth, but then I'm not a judge.

  • JakeS says:

    I'd have thought that accusing an organisation of a serious crime without any evidence at all would constitute reckless disregard for the truth, but then I'm not a judge.

    If that were the case, then saying "Congress is on the take" or "both parties are selling their representatives to the highest bidder" or Goldman owns the Executive Branch outright would be defamatory, unless you could prove that they were true in a court of law.
    They are true, of course, but I doubt you could prove it in a court of law. These guys have way better lawyers...
    - Jake

  • william e emba says:

    And what court would rule that trying to sway an election is defamatory against anybody?

  • Ginger Yellow says:

    If that were the case, then saying "Congress is on the take" or "both parties are selling their representatives to the highest bidder" or Goldman owns the Executive Branch outright would be defamatory, unless you could prove that they were true in a court of law.

    Well, they arguably are defamatory. The question is whether they're libellous. In the former instance, under UK law anyway, I'd say no, as there's no identifiable defamee. A plain reading of the statement doesn't suggest every single member of Congress is on the take, so no individual or group of them could claim defamation. Also, more directly, government bodies cannot be defamed. I assume US law has similar principles. As for the second instance, that's more open to interpretation and sufficiently vague that I don't think it could be libellous even in the UK. After all, it could easily just mean that Goldman is so powerful that Congress does its bidding. And that's before we get into the US requirement for actual malice.
    "And what court would rule that trying to sway an election is defamatory against anybody?"
    Trying to sway an election is not the same as tampering with ballots.

  • william e emba says:

    "And what court would rule that trying to sway an election is defamatory against anybody?"
    Trying to sway an election is not the same as tampering with ballots.

    My apologies for the noise. Mike initially quoted the part where Hoffman accused ACORN of trying to sway the election, and that's all I saw on the reread. The tampering accusation was just a wee bit further down.