Defeated candidate wins speech case against incumbent

From the Summer 2001 issue of The News Media & The Law, page 12.

Statements made during political campaigns are entitled to the broadest of protections, the South Carolina Supreme Court ruled on June 25 when it upheld the dismissal of a defamation case brought by a city council member against his defeated opponent.

“In a political campaign, the guarantee of free speech must be protected with special vigilance to ensure the optimal functioning of the democratic process,” Justice John H. Waller said in the opinion.

The court held that Margaret Fabri deserved summary judgment because Charleston City Council member G. Robert George failed to prove she made certain campaign statements with actual malice, which, in cases involving public figures or officials, must be proven with “clear and convincing” evidence. Courts dismiss cases on summary judgment if there are no facts to be decided at trial and one party is entitled to win as a matter of law.

During her unsuccessful 1997 campaign, Fabri suggested in a piece of campaign literature that George might be a “supremacist” because one of his campaign supporters, Henry Jordan, had made famously bigoted statements. For example, upon being told that posting the Ten Commandments would be offensive to people of other religions, Jordan, a member of the state board of education, said, “Screw the Buddhists and kill the Muslims.”

Fabri had also said George’s election to the council would be a conflict of interest because he was a paid consultant to an adjacent town’s public service district. Because the two jurisdictions had legal squabbles, George’s loyalties would be a conflict, Fabri claimed.

Finally, Fabri surmised that George obtained public contracts through nepotism. George and his father-in-law were both previously commissioners on the James Island Public Service District agency, which later awarded George consulting contracts.

After he won the election, George sued Fabri on behalf of himself and his engineering firm. The court ruled that his firm was a public figure because George injected his firm’s reputation into the campaign by mentioning it in his own campaign materials.

The Supreme Court said none of Fabri’s statements were made with actual malice because there was no proof she knew the statements were false, and she had no obligation to investigate the accuracy of her statements before speaking. Viewed in a subjective manner, Fabri did not entertain serious doubts as to the truth of the statements she made, the court held.

Waller called Fabri’s act of linking a supporter’s philosophy to a candidate “a common campaign practice.” Although it might be negligent to thus accuse a rival candidate, the court stated, negligence is not enough to prove actual malice.

In addition, the court determined that to survive summary judgment in a libel suit, the plaintiff would have to prove actual malice not just by a preponderance of the evidence, as in most tort cases, but by “clear and convincing” proof, a heightened standard. Previously the court had not determined an appropriate standard.

But the court was clearly influenced by the fact that the statements were made in the context of a political campaign. Quoting a U.S. Supreme Court case from 1989, Waller said, “Vigorous reportage of political campaigns is necessary for the optimal functioning of democratic institutions and central to our history of individual liberty.” — DB