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Post-election, libel suits seem like so much political posturing

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  1. Libel and Privacy
A particularly frenzied, even emotional election season is history. Now it's time for what may be called, "The Great Smoothing Over." With the ballots mostly counted…

A particularly frenzied, even emotional election season is history. Now it’s time for what may be called, "The Great Smoothing Over."

With the ballots mostly counted and the transitions in full swing, politicians everywhere are making amends, explaining themselves and backing off the hardest stances they took during the campaign slog. But for a smattering of candidates, this also means dumping a libel lawsuit filed in the heat of the mud-slinging moment — or, perhaps, filing a new one, to try to assuage the sting of loss.

Either scenario lays bare the simple truth that defamation law is, and perhaps long has been, an essential tool for image-protection, particularly in the bitterest of campaign battles.

In North Carolina, for example, Sen.-elect Kay Hagan dropped her libel suit against Sen. Elizabeth Dole on Nov.13 after beating the incumbent Dole, The Associated Press reported. Joseph Fabrizio , a district judge-elect in Clarkston, Mich., did the same, withdrawing his defamation suit after besting current District Judge Dana Fortinberry, reported The Detroit News

While there is nothing "inherently sinister" about filing a libel suit days before the election, University of California, Los Angeles law professor Eugene Volokh said, it can be a carefully planned political move.

"If you file the suit, it can put seeds of doubt in people’s minds about the allegation," Volokh, a First Amendment scholar, said in an interview last week.  "And then, if you win, you ultimately haven’t been harmed much, and you can drop the suit on those grounds.  And if you lost, you might want your pound of flesh."

That might have been the motivating factor for one Tennessee Democratic state House candidate who narrowly lost his election: Campbell County Sherriff’s deputy Roger Byrge filed a libel suit against Republican state Rep. Stacey Campfield a week after Election Day, demanding $750,000 in damages.

"It’s a free country – they can file anything they want," Campfield said of the suit during an interview Friday. "But it won’t be successful.  I think it will be thrown out."

The lawsuit alleges that Campfield erroneously reported on his blog that Byrge had been arrested on several drug charges, concluding with, "I hear the mug shots are gold," according to The AP.

"I was only reporting what I had heard," Campfield said.  "I made no claim as to its validity."

Campfield said he has seen "multiple [libel] lawsuits going on right now, and there are always lots of claims around election time – some people call it the ‘losers limp.’"

House Democratic Caucus political director Keith Talley told The AP that Campfield’s activity was an "example of Republicans doing anything or saying anything to get elected."

"Just the opposite," responded Campfield.  "This is another example of Democrats crying foul when there is no foul, trying to use the courts for intimidation and limiting free speech."

Then there is the case of Oregon political activist Sally Gump, who faced the threat of an election-timed libel suit by two St. Helens city councillors. 

Gump filed a petition with the city to put the potential recall of two city councillors on the ballot in November. In order to get their names in officially, she needed the support of her community, and so she openly discussed the problems she thought the two councillors were causing.

The city councillors, Doug Morten and Phil Barlow, told her through their lawyer that they were filing a libel suit against her. Gump hired an attorney to defend herself. But nothing materialized, and after the ballots were counted it became clear the councillors had no intention of following through with the suit.  

"This move was strictly political," said Gump’s attorney, Michael Sheehan, in an interview Friday.  "The suit was intended to silence her.  People were afraid they would be named in the lawsuit if they signed the petition.  So Sally didn’t get enough signatures, and [the recall] didn’t happen."

Sheehan said the councillors decided not to follow through with their defamation suit immediately after the election.

Finally, and perhaps most famously, in Minnesota, Republican Sen. Norm Coleman’s libel suit against his challenger, Democrat Al Franken, was dismissed just one week after Nov. 4. 

Coleman filed the lawsuit several days before the election, combating a claim put forth in a Franken ad that Coleman is the "fourth most corrupt" senator. The allegation was attributed to the non-partisan group Citizens for Responsibility and Ethics in Washington. 

"While I think some [libel] cases are being used as a tool to acquire attention from TV crews and the rest of the media, I think at the core, it can be a means of issuing your primal scream of frustration," said Mark Anfinson, chief counsel for the Minnesota Newspaper Association.  "Of course sometimes politicians use it as a manipulation or a calculation, but in the end, they’re human beings, and there is a dimension of intense frustration that builds and needs a discharge."

Anfinson said that this particular allegation likely provoked Coleman because it is such a heavy allegation — of corruption in political office — and since it was leveled by a non-partisan group.