Friday, October 31, 2014
McConnell, in cahoots with the KY GOP, sent out a mailer accusing his opponent Grimes of election violations. She has sued alleging that this is voter intimidation and defamation. She's asking for damages and injunctive relief.
I think she loses on the intimidation claim, but can go forward with the defamation claim, under the public figure/public concern standard of actual malice. I'm not comfortable with the request for injunction. Hard to explain why, but I'm not sure it's in the public interest to prohibit campaign material, even when its sleazy and defamatory. Granted there's irreparable harm,and arguments can be made for the other 3 factors for injunction. Maybe Rick, a remedies professor, will have more analysis, but he's just skeptical of the suit, while deploring the mailing.
http://electionlawblog.org/?p=67776
http://electionlawblog.org/?p=67772
Gotta say that is some quick litagating. Lawsuit filed same day. It's almost like there are armies of lawyers standing around waiting to sue somebody.
I had favored McConnell in this race until now. She's cuter. He's been a fighter for freedom of speech. I think this hurts his cause. I do not know offhand the Kentucky constitution's stance on election speech which is defamatory.
The text is easy to find, but I don't know the case law. Wasson v Kentucky sets out some general theory about the Kentucky constitution, but doesn't address defamation.
All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
Fourth: The right of freely communicating their thoughts and opinions.
Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance. It's right there in section 1. and see sections 8 and 9:
Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.
In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
Nice self-enforcing clause:
To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.
Found the relevant case, haven't read it closely. http://volokh.com/2010/10/26/preliminary-injunctions-in-libel-cases-forbidden-permanent-injunctions-allowed/
http://opinions.kycourts.net/sc/2010-SC-000182-I.pdf
II I . ANALYSIS UNDER THE SECTION ONE AND SECTION EIGHT OF THE
KENTUCKY CONSTITUTION
Independently of the First Amendment analysis set forth above, we also
conclude that the injunction is in violation of the free speech provisions set
forth in Section 8 and Section 1(4) of our Kentucky Constitution.
In this vein, we conclude
that Section 8 may be interpreted consistently with the modern rule that
defamatory speech may be enjoined following a judicial determination of falsity.
In summary, consistent with the modern rule, we construe Section 8 as
permitting an injunction against false, defamatory speech, but only upon a
final judicial determination that the speech is false.
So she doesn't get the temporary injunction she asks for, but maybe she gets the permanent injunction. Is there a Purcell problem with issuing that before the election? After the election, is it moot, or capable of repetition yet evading review? Grimes will probably not run against McConnell again, but I think it's a justiciable issue.
I think she loses on the intimidation claim, but can go forward with the defamation claim, under the public figure/public concern standard of actual malice. I'm not comfortable with the request for injunction. Hard to explain why, but I'm not sure it's in the public interest to prohibit campaign material, even when its sleazy and defamatory. Granted there's irreparable harm,and arguments can be made for the other 3 factors for injunction. Maybe Rick, a remedies professor, will have more analysis, but he's just skeptical of the suit, while deploring the mailing.
http://electionlawblog.org/?p=67776
http://electionlawblog.org/?p=67772
Gotta say that is some quick litagating. Lawsuit filed same day. It's almost like there are armies of lawyers standing around waiting to sue somebody.
I had favored McConnell in this race until now. She's cuter. He's been a fighter for freedom of speech. I think this hurts his cause. I do not know offhand the Kentucky constitution's stance on election speech which is defamatory.
The text is easy to find, but I don't know the case law. Wasson v Kentucky sets out some general theory about the Kentucky constitution, but doesn't address defamation.
All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
Fourth: The right of freely communicating their thoughts and opinions.
Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance. It's right there in section 1. and see sections 8 and 9:
Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.
In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
Nice self-enforcing clause:
To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.
Found the relevant case, haven't read it closely. http://volokh.com/2010/10/26/preliminary-injunctions-in-libel-cases-forbidden-permanent-injunctions-allowed/
http://opinions.kycourts.net/sc/2010-SC-000182-I.pdf
II I . ANALYSIS UNDER THE SECTION ONE AND SECTION EIGHT OF THE
KENTUCKY CONSTITUTION
Independently of the First Amendment analysis set forth above, we also
conclude that the injunction is in violation of the free speech provisions set
forth in Section 8 and Section 1(4) of our Kentucky Constitution.
In this vein, we conclude
that Section 8 may be interpreted consistently with the modern rule that
defamatory speech may be enjoined following a judicial determination of falsity.
permitting an injunction against false, defamatory speech, but only upon a
final judicial determination that the speech is false.
So she doesn't get the temporary injunction she asks for, but maybe she gets the permanent injunction. Is there a Purcell problem with issuing that before the election? After the election, is it moot, or capable of repetition yet evading review? Grimes will probably not run against McConnell again, but I think it's a justiciable issue.
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