Kerry, swiftboatvets, and libel

[A_Possum]

Ok, I'm not a lawyer, and I know that libel suits are particularly difficult for public figures. However, I am so disgusted by the lies and distortions of this swiftboatvet bunch, I have to wonder if Kerry doesn't have the right to go after them viciously hard.

I mean, it's one thing to be nice to Bush and all, but these guys are defaming an American soldier's military record and medals, and claiming that Kerry lied to get them. I'd like to see his accusers hauled up under oath, in front of the nation, to repeat what they have to say.

I realize it's a long shot and would never happen, but I googled the following:


Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm.

Typically, the elements of a cause of action for defamation include:

1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.

Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may consititute defamation per se:

* Attacks on a person's professional character or standing;
* Allegations that an unmarried person is unchaste;
* Allegations that a person is infected with a sexually transmitted disease;
* Allegations that the person has committed a crime of moral turpitude;


A public figure may be an elected or appointed (a politician) or someone who has stepped into a public controversy (e.g., movie stars and TV stars, star athletes). Public figures have a "harder road to toll" than the average person since they must prove that the party defaming them knew the statements were false, made them with actual malice, or was negligent in saying or writing them. Proving these elements makes the chance of a successful lawsuit slim.

Just why does Kerry have to take this lying down? Just because he's a "public figure?"

[clydefrand]

1. We just need more people like Dean and Teresa and

Clark to trash Bush and his lack of character and his being a deserter! His lies and those of his administration.

[LabMonkey]

2. Freedom of speech. Thats democracy.

[A_Possum]

6. Legal libel

There's always been some legal restraint on mistating fact maliciously. You aren't free to lie about something with the malicious intent of harming someone else.

Obviously the bar is very high in terms of public figures. Fact and opinion are protected speech, yes. So depending on how the distortions are stated in the book, etc., it may not rise to libel, I don't know.

[iamjoy]

3. Then We Must Go After Ann Coulter

she's accused Democrats of treason.

[stopbush]

4. Yeah, Kerry took pieces of shrapnel and pushed them into his arm!

Amazing how they attack Kerry for "faking" injuries. This is the same administration who hired people to serve who falsified college degrees to justify their big salaries (and of course, that's the least of it).

[RobertSeattle]

5. What we really need is Bob Kerrey and John McCain to publicly rebuke this

[kerrykat2004]

8. McCain

I doubt John McCain will, considering that Bush is going to tap him as Vice-President once Cheney leaves in October for "health reasons."

[SidDithers]

31. Oooh, missed it by that much...

McCain Condemns Anti-Kerry Ads

Sid

[Frodo]

12. No - they didn't serve (in Vietnam) with him.

We need some of the other men in that picture to explain why these guys would lie. I understand this campaign actually goes all the way back to Nixon?


If it were true that only one or two of those men supports him? Then it was a mistake to make his service such a big issue, BUT it's still relevant for those couple guys to point out the lies.

[displacedtexan]

17. I posted the O'Neill Nixon Tapes transcripts...

on my blog this morning:
http://ascrivenerslament.blogspot.com/

[Frodo]

21. Ok.. First of all... I LOVED the "Dick Cheyney Poker" piece

But I need more information on the Swiftvets group.

I knew about O'Neill, and learned about the group's backing (this is a surprise?- lol)

But here's the real question. Who are all these OTHER guys??? I assume they are, in fact, the men in the picture (that would be too easy to debunk). Did a significant number of them NOT serve in the same unit? (My father was river warfare at the time too, but never met Kerry - "different type of boat, we had armor - they didn't" - Could HE have made the list?)

It sure appears that the other oficers in the unit (and his superiors) don't like him (jealousy?) while an almost unanimous assorment of the men who served under him DO like him. What's the disconnect?

[The_Casual_Observer]

7. This kind of nonsense ought to alert everyone that those nitwits

are a dangerous and irresponsible bunch. Is this kind of slop encouraged or endorsed by chimp? This level of character assignation based on unfounded blind hatred and deliberate lies is beyond barbaric. They are an embarrassment to mankind. The frightening thing about this is that those maniacs are out there someplace loose.

[quaoar]

9. To prove libel

of a public figure -- and what constitutes a public figure can be interpreted very broadly -- one must meet certain criteria:

1. The person making the charges knew that they were false or acted with a reckless disregard for the truth (i.e. making no attempt to determine what is true.)

2. That the person making the charges acted with actual malice.

In other words, if you are a public figure, you have to prove that the person making the charges knew they were false, but wrote them anyway with the intention of harming you.

[tom22]

11. I wish that

people would start talking about W's use of cocaine in the 1970s. It was an unresolved issue in 2000. It's a fact though, and the likely reason he blew off one medical exam and left the Guard early rather than miss a second one.

[liberalitch]

18. this fits all of this criteria....

let's get our personal injury lawyer (edwards) after them.....
He should start talking about this... it would be considered "unsporting" of Kerry to bring it up.... but his vp pick can!

[Mz Pip]

24. If this doesn't describe

what that ad was doing then I don't know what does.

How blatant does it have to be??

MzPip
:dem:

[zulchzulu]

10. Giving these SCUM attention is what they want

Let the dirtbags talk amongst themselves. If they get on major media, then blow their fucking asses away. But in the meantime, let them simmer in their shit pile of lies.

[DaveinMD]

13. agreed

if this attack hits the media, its going to really backfire on them.

[Frodo]

14. "Backfire on them"?

How? They're a bunch of unknowns. How can it hurt them?

It's the "perfect" hit piece, and would be devestating if it weren't for a good response (I understand their "leader" has been doing this to Kerry for decades).

But at BEST it's going to distract from the campaign for awhile. That's what they want - keep things from moving our way with attack adds through this month, get a bump at the convention and coast through the Olympics and 9/11/04.

I have no idea what the plan for 9/11 - Election day is, but it should be interesting.

[gauguin57]

15. Get John and Elizabeth Edwards on the case!

That would be a libel trial I'd PAY to see!

[defoliant]

20. A libel suit is EXACTLY what they want

No way Kerry will sue them -- because truth of the statements made by these guys is the strongest libel defense, in effect it would put Kerry's record on trial -- put Kerry on the defensive. And of course it would serve to give greater publicity to them than they could achieve on their own.

I think the bottom line is that they may be richer, but we are angrier and there are more of us. It is going to expensive, and may require that we do more bare-knuckle fighting than we like, but we can out-punch them.

[snippy]

16. These lies are particularly sleazy, even for Bush.

Although they are reminiscent of the 2000 South Carolina republican primary. Kerry should use surrogates to attack Bush on these lies and to remind people of the foul filth Bush spread in South Carolina. When Bush is on the defensive he looks even worse than when he is scripted.

[LabMonkey]

19. "I commited atrocities" does not exactly help the present situation.

Look. Political reality.
This is what is coming down the pipe.
It is going to get worse. Look at drudge today.

Better put on the flack jackets, and
start thinking about responses NOW.
I can promise you, this is what is going
to be used against him. Im as sure of it
as the sun will rise.


Then..........

SEN. KERRY: There are all kinds of atrocities, and I would have to say that, yes, yes, ***I committed the same kind of atrocities*** as thousands of other soldiers have committed in that ***I took part*** in shootings in free fire zones. I conducted harassment and interdiction fire. I used 50 calibre machine guns, which we were granted and ordered to use, which were our only weapon against people. I took part in search and destroy missions, in the burning of villages. All of this is contrary to the laws of warfare, all of this is contrary to the Geneva Conventions and all of this is ordered as a matter of written established policy by the government of the United States from the top down. And I believe that the men who designed these, the men who designed the free fire zone, the men who ordered us, the men who signed off the air raid strike areas, I think these men, by the letter of the law, the same letter of the law that tried Lieutenant Calley, are war criminals.

Now.............

SEN. KERRY: I don't stand by the genocide. I think those were the words of an angry young man. We did not try to do that. ***But I do stand by the description***--I don't even believe there is a purpose served in the word "war criminal." I really don't. But I stand by the rest of what happened over there, Tim.

[snippy]

22. How are Kerry's statements relevant to the lies of the Bush campaign? n/t

[LabMonkey]

25. Isnt it obvious?

[snippy]

26. Had it been obvious, would I have asked the question?

The relevant thing about the foul and filthy lies of the Bush campaign is that the Bush campaign tells foul and filthy lies. Bush always campaigns with the foulest filth. Like when he spread the rumor that John McCain had what the Bush supporters so charmingly referred to as a "nigger" daughter.

[LabMonkey]

27. look this is how the game is played. I didnt make up the rules.

In case you havent noticed. Kerry is being accused of lying about Vietnam and committing atrocities by *other veterans*. Whoever backs them financially is irrelevant politically. Soros backs moveon.org.
So what. Nobody cares about that either. That is the **electorate we have to work with**. Joe and Jane sixpack dont care about who is paying for what. Joe and Jane Sixpack are going to DECIDE THIS ELECTION. The accusations are very serious against Kerry politically,
they could have huge impact regardless of what we know is true.
Uh, yep, thats politics.

He is on tape admitting to atrocities. He is on tape admitting to the kinds of things they are accusing him of *now*.
Do the math.

Look, this could turn into a real hot potato. Why? because there is no choice but to attack the credibility of other Vietnam Veterans.
Guess what, Kerry is a vietnam veteran. Something that has been off the table and NOT open for criticism until now. Something that is a major benefit is now going to come under the gun like never before.
This group can do whatever they want. They are being supported independantly just like Soros and moveon.org. Its not going to go away.

Get pissed at me if you want. I dont care. We are going to have the same problem tomorrow when the sun comes up wether I point it out or not.

Now, what are we going to DO about it?

Im guessing that the only thing that will work at ALL is to discredit these veterans as much as possible, there will be a political price to pay for that though. But I dont see any other way to defend against it.

[Qutzupalotl]

28. They undermine their own credibility.

I don't see how it will hurt to point out that they're lying. After all, Kerry's swift boat mates--the ones who really served with him--were all on stage supporting him at the convention, except for the one guy who died in the intervening years. That means that these other vets who say they served "with" Kerry are liars and should be called out. That won't hurt Kerry, only the liars.

[snippy]

33. The thing to do is point out that this is pure George Bush.

He is responsible for this ad, not some backer of an independent group. Bush has always campaigned like this.

[PurityOfEssence]

23. Google needs a damned cliche lesson

I hate cookie-cutter language and misunderstood boilerplate.

The term is "a hard row to hoe". ("Dang, I'se workin' this field, and this furrow's plumb wore me out...")

No offense to the thread-starter; offense is meant for whatever schlub wrote the copy for Google.

[MallRat]

29. Based on this, I think Kerry has at least a prima facie case for libel.

I can't remember a Presidential candidate ever suing for libel. And I'm not sure if Kerry could ever find evidence that they KNEW that they were lying... although discovery could always uncover some surprises.

My bigger worry is that such a maneuver could actually backfire. The RW hate machine could put out the "Kerry is running like a crybaby to his trial lawyers" meme.

On the other hand, is Kerry still an active member of the Bar? If so, he could represent himself and avoid that criticism.

-MR

[lunarboy13]

30. Even though they are unknowns....

I still think this ad campaign goes so far over the edge that it will eventually help the Kerry campaign. Sure, there might be a few wing-nuts out there who will believe this crap, but I think that undecided voters will not like the ads at all. There is a difference between a negative ad that tries to paint Kerry as a Mass. Liberal and an ad that paints him as some kind of murdering monster who is the sole person responsible for all the attrocities during the Vietnam War.

Yes, we don't know who these "Vets" are and they will most likely never be sued for libel or slander; but undecided voters will likely link them to the Bush campaign. By the time Rove figures out that they are doing more damage than good, it will be too late.

[A_Possum]

32. I think it could play either way, not automatically a bad thing

Remember how people cheered some of the Hollywood stars like Carol Burnett who finally sued The National Enquirer? (She won, too.)

It would have to come across as Kerry saying, on behalf of all American vets, I'm not gonna take people lying about what I and my crew did. I want the record straight. Because this defamation extends to his crewmen and Rassman too. The SBV's are claiming there was "no fire," while the records and the guys on Kerry's boat say there was.

Clearly, at the time, this was not a political matter, it was simply a Navy matter. Now, however, there's a huge reason why political opponents would wish to harm Kerry and bring advantage to themselves by defaming his record. That's critical and obvious. They have motive.

Seems to me that a lot hinges on whether the SWB's are actually saying that Kerry "lied" (fact) or if they are just saying they think he's unfit for command (opinion).

At best, the SVB's have their memories of an incident 30+ years ago to draw on, in which they were bystanders, and now have a suspect motivation. While Kerry has naval records and someone like Rassman who would be quite credible in saying he can remember if there were bullets aimed at him while he was in the water.

I don't think the "it's only drawing attention to the accusations" holds water as a reason not to sue. The attention will be there--the nature of the defamation assures that. Anyone who =didn't= respond directly, with factual vigor, appears as if they have no defense at all. Remember--ack, his name!--the congressman accused of murdering his girlfriend a year or so ago when she vanished, who tried to stay silent and was pilloried as guilty.

That's my opinion.

[LimpingLib]

34. Does anybody have the actual data showing among combatents...

... actualy with Kerry (meaning whoever would have been there alongside and been able to observe if there was enemy fire or not , not necessarily who was on Kerrys boat)while the incident actualy happened , how many on one hand say there was a firefight and (on the opposite end of storys) how many say the US troops were all alone and no Vietnam enemys were present shooting?

I saw the ad in its entirety and it was at least 10 troops bashing Kerry but I get the impression some werent even there.


So, first question , how many US troops were in the vicinity while this incident happened (both agree a water bomb was set there as a trap and it blew alot of people off several boats but thats were the storsy diverge dramaticaly)and the second question is how many of them say enemy fire came after the mine blew VS those that say aside from all the comotion of gathering those knocked off the boats out of the water that everything was quiet and no enemy fire came?

This should be fairly easy to solve unless we end up with a Florida type hanging chad situation (with half agreeing and half disagreeing with many suspicions of unethical tampering with evidence /lieing , which would IMO be rightwingers lieing but many Americans will think Kerry is the lier).

[A_Possum]

35. Listen, the really weird thing is...

This guy Thurlow, who was just on Inside Politics and claiming there was no enemy fire, is mentioned in the Brinkley book about Kerry.

No one was moving on the stern. Ken Tryner, on his first real river expedition, was kneeling dazed in the doorway with a small trickle of blood down his face, aimlessly firing his M-79."

Thurlow had maneuvered his PCF-53 over by this time, and he hopped aboard PCF-3 to offer assistance. The boat was a shambles, but they were still shooting too hard to assess the damage. "Someone on the fantail must have noticed Jim swimming in back of us, ducking against the fire that was trying to pick him off because I suddenly heard the yell of 'man overboard' and looked back to see the bullets splashing in the water beside him," Kerry reported. "We turned around with the engines screaming against each other -- one full astern, the other full forward -- and then charged the several hundred yards back into the ambush where Jim was trying to find some cover. Everyone on board must have been firing without pause to keep the sniper heads down."

...Thurlow was struggling to get PCF-3's wounded gunner out of his hole and onto the deck when the damaged Swift ran aground hard on a shoal on the right side of the river, sending Thurlow somersaulting into the water. At the same moment, the five Swifts came under fire from the right side again, and Kerry remembered thinking that was it -- they were going to get completely cut off and annihilated in a crossfire.

...Along with a third Purple Heart for the injury to his right arm, Kerry was also awarded a Bronze Star for his bravery, as was Larry Thurlow.

By any standard, John Kerry had become a bona fide war hero. When the commander of Coastal Division 11, Charles F. Horne, recommended him for the Bronze Star on March 23, 1969, he pointed out that the 25-year-old lieutenant had previously earned two Purple Hearts (on December 2, 1968, and February 20, 1969) and the Silver Star (on March 6, 1969). Kerry became, along with Larry Thurlow, one of the most decorated officers in the "brown water navy."

So this guy Thurlow got a Bronze Star in the same action and now he's claiming Kerry lied to get his???