Case of the First Amendment or Morals?

This is a partial transcript from "Hannity & Colmes," August 9, 2004, that has been edited for clarity.

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ALAN COLMES, CO-HOST: John Kerry remains the object of negative attack ads like the one produced by Swift Boat Veterans for Truth.

Lawyers from the Democratic National Committee and the Kerry campaign have sent a letter to 20 television stations in the seven markets where the group bought airtime, asking the stations to refuse to air the ad or run the risk of a lawsuit.

Joining us now, former White House special counsel Lanny Davis and from Tallahassee, former attorney for the Bush-Cheney campaign in 2000, Barry Richard. Good to see you both.

Let's talk about the legalities of this first. Lanny, what are the legalities here? Is there a legal issue with playing an ad that is not true?

LANNY DAVIS, FORMER WHITE HOUSE COUNSEL: Well, I think there is a First Amendment problem with preventing ads from being broadcast, even if they're not true.

But there certainly is a moral issue if these stations know that these ads are false and filled with lies — and they are — they have an obligation as a licensee, I believe, to take them off the air.

COLMES: What about that, Barry? I guess you're going to say that they're not filled with lies. But let's just hypothetically say that you, as a broadcaster, believe that they are filled with lies. Is Lanny right, do you have a moral obligation not to air that commercial?

BARRY RICHARD, FORMER ATTORNEY FOR BUSH/CHENEY CAMPAIGN IN 2000: Well, first of all, I can't say whether or not they're filled with lies, because I have no idea.

But I don't think we have much of a debate here, because I agree with him on two counts. First of all, I think that it is a serious question as to whether there's any exposure to libel here, because of the heightened standard when you're dealing with a public figure.

But second, I think all responsible public communication media do not allow themselves intentionally to be utilized as an instrumentality for the broadcast of false information.

COLMES: But if you believe as a broadcaster that what is being said here is false, if you see this and really say, "You know what? I've got some problem with this." The broadcaster would have to say, "Look, I'm not comfortable airing this. I'm not going to air it."

RICHARD: Well, I think most broadcasters would do that.

COLMES: And Lanny, you know, I've got some problems with the whole swift boat thing and the things they've been saying. And in the ad we're talking about, for example — I don't know whether it's true or not — they make certain claims like, for example, that Louis Letson, a doctor who says he treated Kerry, says Kerry didn't deserve his first Purple Heart, because he inadvertently wounded himself. There was no hostile fire.

But other records show that it was another doctor, J.C. Carreon, who treated Kerry.

I'm guessing that could be something that could be easily proven, who the doctor of record is?

DAVIS: Yes. Let's talk about facts rather than speculation. This Letson guy never signed a single sheet of paper. He was never serving on a boat or had any direct observation of Lieutenant Kerry when he received that Purple Heart for the first incident.

And let me tell you another fact as to why, Barry, we know these are lies. Every single member serving on the swift boats that deserved and that warranted three Purple Hearts, every single crewmember has testified that what John Kerry did and what he was awarded a Purple Heart for happened.

The only disagreement are people with political motivations in these books who were not serving on those boats, who were not direct observers, who have no credibility. That's why they're lies.

COLMES: Barry, you're given the impression that they served with John Kerry. I mean, they may have served in the war with John Kerry, they may have been half a football field away, but if they were not on that boat, they have no right to give that impression, do they?

RICHARD: Well, certainly from a moral standpoint, from the standpoint of what's appropriate, you don't have the right to mislead people, whether you do it directly or indirectly.

If the statement is made that we served with John Kerry and it gives the impression that they served on a boat with him, I think everybody in this business would say that that's inappropriate.

But whether or not it's appropriate is not the same thing as whether or not it's libel and whether or not it's actionable against a station.

But I don't think either of the candidates in this campaign would suggest that anybody should broadcast misleading information.

COLMES: Well, they wouldn't want that. I would hope that George W. Bush would distance himself and say, "I want no part of this. I don't want to be represented this way. It's not the campaign I want to run."

Because I think, you know, and I think he has — as Sean said, pretty much said, you know, I don't think George W. Bush likes what's being done on his behalf here.

DAVIS: Let me give you one example of a lie. This guy O'Neill, who is the co-author of this book, not only never served on any of these boats, he was involved with Richard Nixon in 1971...

SEAN HANNITY, CO-HOST: All right, Lanny, he's not here to defend himself, Lanny. So I'll tell you what. If you want to come back...

DAVIS: I just stated a fact.

HANNITY: ... and debate him, you can. But that's not the fundamental issue here.

DAVIS: I'd be happy to.

HANNITY: Lanny, this is not about smearing people that don't have an opportunity to defend themselves.

DAVIS: Excuse me, I just said a fact. That's not a smear. He was with Richard Nixon in '71 trashing John Kerry. That's fact. That is not smear.

HANNITY: Here's what we know, Lanny. Lanny, here's what we know.

We know you weren't there. We know nobody on this panel was there. Here's what we know and I know it's a little clever Clintonesque style parsing of words, that these guys, quote, "never served on the exact boat."

These Vietnam vets, many of them decorated, they are claiming they were there during specific incidences where Kerry is claiming to tell one story and their recollection is the other way.

Don't they deserve the right, Lanny, to tell their side of the story? Don't you support their right to get their side of the story out, their version out? And can't you allow them to do that without questioning their character? Basically you're insinuating they are lying.

DAVIS: First of all, I'm stating facts.

HANNITY: Are they lying?

DAVIS: Are you going to let me finish?

HANNITY: Are they lying, yes or no? Answer.

DAVIS: I believe that they are deliberately misleading.

HANNITY: You don't know that.

DAVIS: Some are lying because they use the word "serve" when every man who was on that boat and none of them...

HANNITY: Have you ever read the book?

DAVIS: Sean, this is one night you're not going to talk over me.

HANNITY: You haven't read the book, Lanny, have you?

DAVIS: I have read excerpts.

HANNITY: Excerpts, you haven't read it. You haven't read it.

DAVIS: And a lie is — and here's a lie. Every member of that crew says that Jim Rassmann was blown off that ship by a mine. Every member, including Rassmann.

HANNITY: We had a guy on this program last week...

DAVIS: The lies are from people who, from a distance in the middle of battle, are saying that that wasn't the case.

HANNITY: Lanny, I don't care how loud you get. You are basically calling these men, that were there, that were there claiming they were eyewitnesses to this and you want their voices silenced.

Don't you think they at least earned the right to tell what they saw in Vietnam, even though it may contradict your beloved John Kerry? Don't they deserve that, earn that in Vietnam?

Why would you take that away from them and impugn their character, just like has happened during the Clinton years, Lanny? I thought you were above that.

DAVIS: Now it's my turn, Sean. I am saying to you that people who are looking from a distance and are saying that Rassmann was not blown off the ship...

HANNITY: You don't know what the distance was.

DAVIS: You're interrupting me again.

HANNITY: You don't know what the distance was.

DAVIS: You won't let me finish, because you don't want to know the facts.

HANNITY: You don't know the facts. You weren't there.

DAVIS: The fact is, every single member of that crew testified that John Kerry turned into the battle, went to pick up Rassmann, picked him up and he got a Purple Heart for that reason.

HANNITY: We had an eyewitness here.

DAVIS: There isn't a single person on that ship who disagrees with that.

HANNITY: We had an eyewitness here.

DAVIS: And the other people who say that it isn't so are lying.

HANNITY: Lanny, you — then every person in this book that you haven't read, you're calling a liar?

DAVIS: Not one of them was on the ship. Not one of them...

HANNITY: They were all saying they were there during these incidents.

DAVIS: Do you disagree that any one of them was not on that ship?

HANNITY: You don't even want to hear them out. You want to silence them, and you support this idea that they can pressure TV stations not to read; not to run the ads.

DAVIS: You know, because you haven't denied, because you can't...

HANNITY: That's beautiful, Lanny.

DAVIS: ... not one of them was on the ship and not one of them, not one of them can contradict the men that were on the ship.

HANNITY: Why don't you let them tell their story and let the American people decide, Lanny? Let them tell their story?

DAVIS: They can. I'm happy to have people lie and for me to call them liars.

HANNITY: Are you calling them a liar?

DAVIS: I am calling them liars for saying that they served with John Kerry when they weren't on the boat, when every single man on that boat — every man on that boat — support John Kerry's version.

HANNITY: OK, we still like you, Lanny. You just won't hear — let me ask you this, Lanny. One of the things that amazes me about John Kerry. And I am more concerned, I've got to be honest. His record on defense, his record on intelligence, I'm more concerned about his 20-year record in the Senate.

He has decided to highlight Vietnam in this campaign. So therefore, the door has been opened. He admitted in an interview that, quote, "I committed atrocities." He violated the Geneva Conventions, and he admits to burning down villages. He's the one that said that.

Now that he's opened the door, should we have him explain what the atrocities were? Should we have him explain why he burned down villages?

DAVIS: He actually said to Tim Russert on "Meet the Press," Sean, that he regretted those words. I think to this day as a young man...

HANNITY: He regretted what words, that he admitted to atrocities?

DAVIS: The characterization of the troops committing atrocities.

HANNITY: Well, how do you regret those words? Either you did or you didn't.

DAVIS: Sean, come on, you've got to let me finish. Even though he engaged in free fire zones, and many, many people, including Senator McCain, Senator Bob Kerrey, all have observed that these things happened.

But I think Senator Kerry regretted those characterizations. And to talk about the point you asked me about earlier.

I'm not denying people the right to express themselves, but if they mischaracterize and deliberately, falsely state that John Kerry did not engage in the acts that led to these Purple Hearts...

HANNITY: All right. You can believe what you want.

DAVIS: ... when every man on those ships...

HANNITY: Hang on a second.

DAVIS: ... every man, confirms his account.

HANNITY: But wait. But Lanny, here's the difference.

DAVIS: I have a right to call them liars.

HANNITY: Only one out of 23 of his commanders support him. Only one. And the other guys don't. And here's the point.

DAVIS: You're changing the subject.

HANNITY: Lanny, I don't know what happened here. I don't. Neither do you.

And these guys are telling stories that they're saying, firsthand accounts of what happened, and as a political effort, you are trying to accuse them of lying. But you don't know the truth, because you're taking the Kerry tact here.

DAVIS: All right. Let me...

HANNITY: What I'm advising you and me and everybody else in America to do, let these guys tell their story. Let the Kerry campaign respond. And then let's move on to where we're going to deal with the war on terror. That's my advice.

DAVIS: Let me repeat very clearly what I'm saying. I believe that he deserved the Purple Hearts because every single man on those boats on the three incidents...

HANNITY: Then don't trash the other guys.

DAVIS: Every one of them...

COLMES: Hey, Barry, everyone questioning this is despicable.

DAVIS: ... confirmed the accounts.

COLMES: It really is despicable.

DAVIS: That's why I believe. Now, why do you disbelieve those men?

COLMES: Let me get Barry in here, Lanny.

DAVIS: Why do you disbelieve those men?

COLMES: It's despicable that this has become a campaign issue and do they do want us to start asking where was George W. Bush during those years? What was he doing? What was he saying? Why did he put on his application, when he joined the National Guard, prefers not to be sent overseas?

Is that a wise game for Republicans to be playing this election season, Barry?

RICHARD: Are you asking me that?

COLMES: Yes.

RICHARD: I don't think the Republicans are playing the game. I think the ad that we're talking about is by an independent organization, which I think all of the candidates are scared to death of and would prefer not to be running ads.

As a matter of fact, President Bush, I understand, has called upon all of these outside organizations not to run ads.

COLMES: I believe he has done that and I think that's to his credit.

One of the people, though, contributing to this organization, Bob J. Perry, who gave $100,000 to the swift boat group, apparently has connections to Karl Rove.

We know that Merrie Spaeth, their spokesperson, has been involved in Republican campaigns in the past. Some of them were involved in some of the smearing of John McCain four years ago.

So some of the same players are here. I would hope that they would back off at the request of the president.

RICHARD: I think often these types of independent organizations think that they're helping a candidate and sometimes it backfires. The candidate has no control over them, is not supposed to have control over them and I think the candidates would prefer not to be helped in that fashion.

COLMES: So you agree with me, it's despicable?

RICHARD: That what is despicable?

COLMES: To question somebody's service, to question how they were awarded Purple Hearts. They're calling John Kerry a liar in this ad. I think they're all heroes, those people who went and served.

RICHARD: I think it's the kind of advertising that we could do without and that the public would rather not see.

COLMES: And Lanny, 10 of the 11 people who did serve on two swift boats, as Al Hunt pointed out in "The Wall Street Journal" last week, have all sworn by John Kerry. Nine living members were in Boston a couple of weeks ago at the Democratic National Convention.

DAVIS: Let me just clear up this 10 out of 11, Alan. The one out of the 11 did not serve on PCF-94 where John Kerry earned two Purple Hearts and did not serve on the other rail boat where he earned the third.

HANNITY: Lanny, Lanny...

DAVIS: So the one didn't serve on the boat.

HANNITY: Lanny...

DAVIS: Everybody who served on the boat testified directly.

HANNITY: Lanny...

DAVIS: And anyone who says otherwise is not telling the truth.

HANNITY: If you're really nice to me, I'll protect you during the Republican Convention.

DAVIS: Thank you, Sean.

HANNITY: All right, guys. Richard, Barry, thank you.

Lanny, thank you.

Appreciate you both being with us.

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