Defamation and the Defaming Defamers Who Commit It

Here's an interesting article from TNR suggesting that Kerry should go after the Swift Boat guys by suing them for libel.

I'm curious to hear what you guys think of this idea, both on the legal merits and as a matter of political strategy.

On the merits, I think the odds are stacked against Kerry. (The Swift Boat ad is here.) I see two principal problems, even with pursuing the claims against Letson and O'Dell, which seem to be the only statements in the advertisement that purport to have any factual content whatsoever.

First, even these claims make no affirmative statement of fact; all they do is claim that John Kerry's previous assertions are false (and the content of Kerry's assertions is never really explained). They say, "John Kerry lied about topic T." They don't say, "John Kerry said X. In fact, the truth is Y." This adds an additional evidentiary problem in proving actual malice than your typical libel case, namely that even before you get the issue of malice, you first have to identify the specific statement of fact at issue (i.e., prove that the speaker, in referring to topic T, actually meant X).

The second problem is, I guess, something like an agency problem. In order to go after SBVT, wouldn't Kerry have to prove not only that the original speaker had malice, but that SBVT also was malicious in using those statements in their advertisement? This also doesn't seem like an easy thing to do.

I must confess that I've mostly ignored the media frenzy on this, so it may be that these guys have done enough interviews and there is enough of a record out there that Kerry would be able to fill in some of the blanks, but it seems like a fairly weak case so far.

The political calculation is, in my mind, linked to some extent with the legal merits. If Kerry is pursuing an obviously meritless claim just to harass or exact retribution on political opponents, obviously that won't play. And, led by the right-wing media outlets, I'm guessing that the prevailing media reaction will be to dismiss this as sour grapes. And Baer's probably right that some people will try to make a connection between this as Edwards's background as a trial lawyer (though I am a bit skeptical as to how damaging this issue is).

This probably would also alienate hard-core civil libertarians. At the end of the day, hard-core ACLUers may be so pissed at Bush, Ashcroft, et al. that they'll still vote for Kerry, but I think it would look pretty bad if some talking head from ACLU went on TV saying that Kerry is anti-speech. (Though I, like Baer, don't think that whatever "chilling effecct" this would have is necessarily such a bad thing.)

All that being said, one of the points from the article really hit home for me:

In an environment where the president and his allies believe that he is on a divine mission, the right will stop at nothing to win this race.

That is why if Bush should lose this November, there won't be any honeymoon for Kerry--his first few months in office will look like the last years of the Clinton presidency: congressional inquiries, constant talk radio trash-talking, and book deals for anyone with a charge to make. Simply, Kerry can't afford to let the SBVT charges go unanswered if he wants to govern effectively.

This seems, to me, to be right on target. I'm a full believer that there is a vast right-wing conspiracy out there, and I am absolutely convinced that should Kerry win the election. Republicans will be working around the clock to undermine him at every turn through every available means. Kerry needs to fire a shot across the bow, to draw a line in the sand and say, "Cross this line, you do not!"

I'm just not sure this is the right way to do it.