Betty Bean with an analysis of how a U.S. Supreme Court decision may put Roger Byrge's libel suit against Sen. Stacey Campfield in a new light:
The ripples from last week's U.S. Supreme Court decision opening the question of whether it's okay to lie during political campaigns didn't take long to reach the Tennessee Court of Appeals, which promptly shot out an order to the attorneys representing Roger Byrge and Stacey Campfield instructing them to re-brief their cases in light of Susan B. Anthony List v. Driehaus.
Byrge is appealing the 2013 dismissal of his libel suit against Campfield in Campbell County Circuit Court, where Judge John McAfee ruled that although Campfield had posted an ugly falsehood about Byrge--who was running for a seat in the state House Of Representatives - on his blog two weeks before the November 2008 election, he didn't do it maliciously or with reckless disregard for the truth. In McAfee's view, it was just politics.
A retired Campbell County sheriff's deputy and a Democrat, Byrge was running for a seat in the state house. Republican Campfield, who is now a state senator but was then a state representative, was participating in a statewide GOP push that Republicans hoped would end decades of Democratic legislative control. He shared his enthusiasm for the task on his blog, Camp4U, and in the process of complaining about media bias against Republicans, he falsely identified Byrge as a drug dealer with a criminal record and hinted that mug shots were coming soon.
Later, in deposition, he would say that he was relying on information given him by Glen Casada, who was directing Republican House election efforts. Casada, in deposition, said he had warned Campfield to be careful because the information had not been fully confirmed.
Oral arguments were presented to the appellate court in February, and the court presumably has been cogitating on the matter since then. So what does Susan B. Anthony List v. Driehaus have to do with Stacey Campfield and Roger Byrge?
SBA List is a non-profit anti-abortion group founded in 1993 to counter the pro-abortion rights Emily's List, which was so successful in its first year that 1992 came to be known in political circles as "The Year of the Woman." The slew of pro-choice women elected across the country inspired the formation of the eponymous Susan B. Anthony List, which claims the famed feminist founding mother as its spiritual muse, despite many historians scoffing at the notion that abortion was a hot issue for 19th Century suffragists, who were occupied with voting and property rights.
In 2010, SBA List decided to get involved in the re-election campaign of Ohio U.S. Rep. Steven Driehaus, who had voted for the Affordable Care Act. They bought a billboard with the intention of denouncing Driehaus as a supporter of taxpayer-funded abortions:
"Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion."
Since the president--desperate to scratch up enough votes to pass his signature bill--had entered into an agreement with anti-abortion forces that women too poor to pay for their abortions will have to look elsewhere for financial aid, Driehaus' lawyers are adamant that the SBA List's allegation is a violation of Ohio's False Statement Law, which makes it a criminal offense (punishable by $5,000 fine and/or six months in jail) for lying about a candidate. Driehaus dropped his claim after losing the election (he has since reportedly moved to Swaziland), but SBA List continued to press its case, saying that the False Statement Law violates its right to free speech, as guaranteed by the 1st Amendment to the U.S. Constitution.
Detractors say SBA List is pursuing a "Right to Lie" case.
The high court agreed with SBA List, and in a rare unanimous decision (authored by Clarence Thomas), ruled that it had raised a "justiciable issue" that needs to be fully litigated.
"You're not asking us to resolve the constitutional question, just the question of whether you can raise the constitutional question," said Justice Antonin Scalia.
So what's this got to do with Tennessee, which has not criminalized lying in political campaigns? (Cue an avalanche of bad jokes about who wouldn't be in the hoosegow if this were the case.)
Questions of civil liability remain. Defamation cases are rare in this state, and the standard plaintiffs must meet is high, since political candidates are by definition public figures who must prove not only that the offensive statement is false, but also that the perpetrator uttered it with "actual malice" (knowingly lying), or with willful disregard for the truth.
It is not clear that the court will decide that the Susan B. Anthony List v. Driehaus case applies in Tennessee, or how they will decide Byrge v. Campfield. But what is clear is that Stacey Campfield is still paying a price for shooting his mouth off in 2008, and his falsehoods continue to haunt him in a year when he is facing his toughest re-election fight ever.