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Malice in politics? Actually, maybe

Another election, another assortment of negative TV ads. Congressional candidate Chris Kouri says Robin Hayes' vote for fast-track legislation cost North Carolina jobs. Hayes answers that Kouri is a liar for whom "vicious personal attacks are nothing new." Congressional candidate Brad Miller says his opponent, Carolyn Grant, can't be trusted, citing two legal disputes and a decision by the State Board of Transportation. Grant says Miller slandered her and she's going to sue. Etcetera, etcetera.

If the typical voter finds this stuff intolerable, think of its effect on the typical non-voter (and in a mid-term election year like this one, there are twice as many non-voters). Both should keep their remote controls handy, or invest in Tivo, because the fact is, political advertising isn't about either one of them. The typical voter is partisan. He makes up his mind early, based on party affiliation, and the TV ads aren't going to change him. The typical non-voter thinks politics is irrelevant or corrupt, and the TV really isn't going to change her either.

No, the ads are aimed at a small group of people who sometimes vote but aren't aligned with a party, don't follow candidates or issues much, and thus are most susceptible to a persuasive message, especially a nasty one.

The result is a downward spiral: As campaigns get more negative, more occasional voters become non-voters and the rest try harder not to listen, which means the negative messages have to be even more cutting. You sometimes wish a panel of solons would vet each ad as it airs and come on immediately afterward to say: "That ad was a disgrace. Five points off for Candidate X." Or, "Fair comment. Candidate Y gets five points for accurately describing his opponent's court case."

The legal standard for political ads, however, isn't about whether they're fair. It's about whether they cross the line into libel or slander. And for "public figures," which candidates obviously are, that line was set appropriately high by the U.S. Supreme Court in New York Times Co. v. Sullivan in 1964. For political comment to be libelous, the court said, it must not only be false and defamatory--the standard for ordinary folk--but be made with "actual malice": The person saying it must either know it's false or have "reckless disregard of whether it was false or not." (Otherwise, the court said, we'd all worry whether what we said, though we think it's true, is worth the trouble it would take to prove it if we were sued.)

But just when it seemed you could say just about anything in a political ad if it arguably was sort of true, a little-noticed decision by an N.C. Court of Appeals panel six weeks ago may have put fairness into the equation, at least a little.

In the 2000 election, now-Attorney General Roy Cooper attacked his opponent, Dan Boyce, in an ad: "Dan Boyce," it said. "His law firm sued the state, charging $28,000 an hour in lawyer fees to the taxpayers. The judge said it shocked the conscience. ..."

Boyce sued, but his case was dismissed by a trial judge as having no chance to succeed. Wrong, the Court of Appeals said. In a unanimous ruling, three Democratic judges (Patricia Timmons-Goodson, Edward Greene and Linda McGee), said Boyce's case should be heard. The ad was arguably false: It wasn't Dan Boyce's current firm, Boyce & Isley, that sued the state, but a predecessor firm led by his father, Gene Boyce, that did not include him or others now in "his law firm." But that's not why the Appeals Court decision was so interesting. Rather, it was its holding that what the ad said about the firm was defamatory per se "when viewed through the eyes of an average person and in the context of the advertisement as a whole."

Writing for the panel, Timmons-Goodson said the average person, not knowing anything about class-action lawsuits or contingency fees, would conclude from Cooper's ad that what the Boyce firm did was "contemptible." In fact, she wrote, law firms often ask for big fees "in the context of a [$]150 million class-action lawsuit," but the judge in this case knocked the fee down based on the actual hours worked. "Without this vital information to lend context to the facts as portrayed in the advertisement, the average viewer could not properly evaluate the claims being made ... " she wrote.

Wow. In other words, it's defamation as a matter of law (unarguable, that is) if you falsely leave the impression that a law firm charged too much? That means this case, unless a higher court says otherwise, could go to a jury to decide whether the ad was born of "actual malice."

This is no comment on Boyce v. Cooper, but if judges start sending political advertising to juries because they portray candidates as contemptible without "(lending) context to the facts as portrayed," well, that'll change some ads, won't it? Some political reporting, too, perhaps. Earlier, we used the word "squalid" in a sentence above. On second thought, we've taken it out.

DiamondDiamondDiamondReaders of "Family Feud," our story (Oct. 16) on the Eric Reeves-Paul Coble state Senate race will appreciate this. N.C. Chief Justice I. Beverly Lake Jr. recently gave the Chief Justice's Professionalism Award at the annual State Bar dinner. The recipient: Robert Morgan.

Citizen is writing before the election results are known. To let him know what happened and why, write


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