WASHINGTON – Libel cases against lawmakers are not uncommon — as North Carolina Republican Rep. Cass Ballenger learned this month — but in many cases the immunity lawmakers receive as elected public officials goes a long way in protecting them.
But not every time, say experts.
"I defended a spate of them when I was [general counsel for the House of Representatives] and they’ve continued on occasion, given that the members are always giving speeches outside their immunity," said Stanley Brand, who served as general counsel from 1976 to 1983.
In libel suits, public figures such as lawmakers are accorded "absolute privilege."
"Elected government officials who make statements that are a necessary part of their government function are completely immunized," said John Watson professor of communication law at American University (search), explaining the cover that absolute privilege affords.
For a plaintiff to sue a congressman for libel, the plaintiff first "would have to show actual malice: that the congressman knew the statements were false or acted in reckless disregard, and that’s a heavy burden to overcome," Brand said.
The Council on American-Islamic Relations is going to try. The group announced in early December that it has filed a defamation suit against Ballenger for his claims that CAIR is "the fund-raising arm of Hezbollah."
Ballenger made the claim in an interview for his hometown paper, The Charlotte Observer. He also claimed that the stress of living across the street from CAIR's Washington, D.C., office "bugged the hell" out of his wife and led to the breakup of their marriage.
In its lawsuit, CAIR says Ballenger’s statements damaged the group’s reputation and are not protected speech because he did not make them within the scope of his role as a congressman.
The suit says Ballenger’s claim that CAIR raised funds for terrorists was made “with actual malice, wrongful and willful intent to injure…and with reckless disregard for its truth or falsity.”
Brand said because Ballenger's statement was not strictly speaking part of his legislative duties, but part of a newspaper interview, his priviliged status is not entirely clear.
But CAIR, which is seeking $2 million in compensatory and punitive damages along with attorney fees, may have a difficult time proving its case, he added.
"They would have to show that the congressman uttered a false statement about them that disparaged them in some way, that harmed them in some way, and they have to show actual damages," he said.
Brand said cases like the one between CAIR and Ballenger can take years, in part because the courts are cautious abour dismissing claims against lawmakers unless the complaint referred back to a statement the lawmaker made on the floor of Congress or in committee.
Even cases that appear frivolous "are not that easy to dismiss," Brand said. "You have to show that you're absolutely immune. Courts are reluctant to throw things out on a preliminary basis."
By example, one suit against former Sen. William Proxmire, D-Wisc., went all the way to the Supreme Court, said Don Ritchie, associate historian in the Senate Historical Office (search)
Ritchie said Proxmire was sued by a scientist, Ronald Hutchinson, after the senator gave Hutchinson his "Golden Fleece of the Month Award," a distinction Proxmire handed out to people or organizations that he thought wasted government funds. Hutchinson earned the "award" for his research on the emotional behavior of monkeys.
In delivering the prize, Proxmire made statements about the research on the Senate floor and in a press release.
Hutchinson "has made a fortune from his monkeys and in the process made a monkey of the American taxpayer," Proxmire said in his release.
Although the Court of Appeals for the Seventh Circuit ruled that Proxmire was protected by his status as a legislator, the Supreme Court overturned the lower court ruling, concluding that the press release was not protected in the same way as the statement on the Senate floor.
Probably the largest number of libel suits against a single lawmaker was directed at Sen. Joseph McCarthy, R-Wisc. (search). McCarthy took advantage of his senatorial immunity by making accusations and bold statements on the Senate floor.
"McCarthy would say things on the floor of the Senate and people challenged him to say it off the floor of the Senate," Ritchie said. To protect himself from libel suits, "McCarthy was very careful about not repeating many of his statements."
Ritchie said that although plaintiffs often ask for monetary damages, that is not necessarily the primary goal.
"In some cases people bring the libel case just to make a point. Whether they win it or not, in a sense they’ve drawn attention to the issue and put their opponent on the defensive," Ritchie said.
"Usually a libel lawsuit is an effort to get back your reputation and you get back your reputation by having it repaired in the public arena," said Watson, who added that libel cases often end with an apology, retraction or clarification of the contested comments.
One of CAIR's likely motives is simply to contest publicly Ballenger's assertions in order to protect its reputation, said Thomas Dienes, professor of law at George Washington University (search).
"I think sometimes it's almost necessary to do it just for the sake of doing it. You don’t really expect the win and you're telling all your donors: 'We are contesting it.' If you didn't do it, then people would be saying that it must be true."