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Koch: Why hasn't Kerry sued the Swifties?

SPECIAL TO WORLD TRIBUNE.COM
Tuesday, August 24, 2004

The Bush and Kerry campaigns should jointly denounce the scurrilous attack ads now coming from so-called "527" committees.

The existence of these committees stems from the recently enacted McCain-Feingold Campaign Finance Reform law, which limits the use of soft money by candidates and national parties while authorizing independent campaign organizations, known as "527" committees, to accept unlimited soft money contributions.

These committees are often financed by supporters of both presidential candidates. One committee, made up of Kerry opponents, has been attacking him for more than 30 years, including on recent television spots. The critics are fellow Navy personnel from the Vietnam War, who denounce Kerry's war record and question the validity of the three purple hearts and bronze and silver stars that he was awarded.

Why Senator Kerry has not sued the individuals issuing these scurrilous, defamatory statements is a mystery. Some might think the Times v. Sullivan case prevents such a suit, because Kerry is a public person and not protected from defamation. Not so. A public person can sue for defamation but must show actual malice to establish the right to monetary damages. In this context, actual malice means that the libel was published with knowledge that it was false or with reckless disregard of whether it was false or true.

U.S. Senator Barry Goldwater brought an action for defamation and was awarded $75,000 in damages in a decision upheld by the U.S. Supreme Court. The defendants had written that Goldwater was severely paranoid and psychologically unfit to hold high office.

Several years ago, then U.S. District Court Judge Pierre Leval, now Circuit Court judge, wrote an essay pointing out that in his opinion Times v. Sullivan and the cases that followed it did not prevent libel suits by public persons. It merely prevented the awarding of damages if actual malice was not present.

There appears to be no legal impediment to Kerry's initiating a libel suit. So far, he has chosen not to do so. It is too late now to get a court decision before the election, but he certainly should institute a lawsuit right after the election to protect himself from such outrageous allegations in the future.

The candidates cannot prevent the 527's from operating, but an appeal to them to stop their negative ads might have that effect. The Democrats have used the 527Ős to a far greater extent, and their 527's are spending much more money than those of the Republicans. They are denouncing President Bush for having served in the Air National Guard during the Vietnam War and questioning his attendance. As Senator McCain has stated, Bush's service in the National Guard was noble as was KerryŐs in the U.S. Navy. These campaign schmutz artists should stop it already.


Copyright © 2004 East West Services, Inc.

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