The title of this blog entry is a loose play on the name of the primary case I’ll be discussing today: New York Times v. Sullivan 376 U.S. 254 [84 S.Ct. 710, 11 L.Ed.2d 686] (1964).

There are days when I imagine George Bush, waking up in the morning. The sun shines in through one of the large windows of the White House bedroom in which he sleeps, awakening him. He’s been smirking half the night in his sleep, punctuated by intermittent grimaces that come with the occasional nightmares that enough of us will wake up and he will be voted out of office. But most mornings, he doesn’t even recall those nightmares. He feels the warmth on his face and his smirk changes; the smile moves across his face faster and more fearless than a swift boat traversing the Mekong Delta under enemy fire.

He has every right to smile. He knows the average American is unable to recognize that much of the “news” they will hear that day is crap. And of those who suspect it, fewer still will realize that he, or his friends, are behind it. As oil prices gush higher (except in Iraq, where American subsides allow Iraqis to fill an entire gas tank for much less than the cost of a gallon in the United States), making him wealthier with each of those sunshine-filled morning awakenings, some of those dollars are funneled towards re-writing history. Just as a between-censuses re-districting in Texas paints Bush a more favorable political landscape, so, too, does a between-facts re-structuring of the “news” paint a history more favorable to Bush. The absence of truth and the definition of actual malice — the topic of this article — are not even minor stumbling blocks, because to Americans, freedom of speech has become synonymous with saying anything you want, regardless of veridicality. All that matters is that you have the money to control the message. We’ve seen this when it comes to Republican “science,” Republican “news,” Republican “economics,” and Republican “history.”

Much of this can be explained by the One True Value of the Republican Party: We Want What We Want. The corollary to this, of course, is: We Don’t Care What The People Want. For the most clear-cut picture of this, look at the comments made during the battle over Propositions 209 and 215 in California.

And if the truth gets in the way? Well, that is what today’s discussion of New York Times v. Sullivan is about.

Friendly Fire: The Birth of an Anti-Kerry Ad

First, some background. I’ve been thinking about this article for at least a couple of weeks now. The “inspiration,” if you will, was the “controversy” over John Kerry’s Vietnam service. It’s difficult to understand how a “controversy” became a controversy, but that shows both the power and the danger of well-funded demagoguery. For the reality — which will likely be heard by fewer people — is that the “controversy” is cooked-up Republican-sponsored historical revisionism.

An in-depth report, detailing the comments of the so-called “Swift Boat Veterans for Truth” (hereafter “SBVT”), the claims of a book related to the “controversy” which they put out and the details of military records obtained via the Freedom of Information Act, as well as published interviews with some of the SBVT before they changed their mind about Kerry’s wartime service, was published today by the online version of The New York Times. To read the article, you need a (free) subscription. For those interested, potential intrusion on your privacy that might attend subscribing to an online newspaper is worth the read.

The article discusses the evolution of “the case against Kerry.” (Based on the fact that there is no case against Kerry, those are scare quotes.) As Zernike and Rutenberg, the authors, note,

How the group came into existence is a story of how veterans with longstanding anger about Mr. Kerry’s antiwar statements in the early 1970’s allied themselves with Texas Republicans.

                                                                                     * * *

Records show that the group received the bulk of its initial financing [Rick’s Note: 94%, to be exact] from two men with ties to the president and his family — one a longtime political associate of Mr. Rove’s, the other a trustee of the foundation for Mr. Bush’s father’s presidential library. A Texas publicist who once helped prepare Mr. Bush’s father for his debate when he was running for vice president provided them with strategic advice. And the group’s television commercial was produced by the same team that made the devastating ad mocking Michael S. Dukakis in an oversized tank helmet when he and Mr. Bush’s father faced off in the 1988 presidential election. Zernike and Rutenberg, supra.

The article is quite detailed on both the backing and funding being received by the group and on specific “charges” they’ve leveled against Kerry. The interested reader, however, isn’t limited to taking the word of the New York Times (or of the writer of Unspun™, for that matter). Copies of John Kerry’s wartime “Fitness Reports” are available on his website; the imprint of the military “Official Record Copy” is clearly visible on each of 29 pages offered. To give just one example of the bogus nature of the “controversy,” it’s necessary only to note a few points:

• One of the leaders of the Swift Boat Veterans for Truth is George Elliot.
• George Elliot says, “John Kerry has not been honest about what happened in Vietnam.”
• On the 18th of December, 1969, Lieutenant Commander George Elliot signed and submitted an official Navy document (NAVPERS 1611/1 (2-68)) that said,
  

  In a combat environment often requiring independent, decisive action LTJG Kerry was unsurpassed. He constantly reviewed tactics and lessons learned in river operations and applied his experience at every opportunity. On one occasion while in tactical command of a three boat operation his units were taken under fire from ambush. LTJG Kerry rapidly assessed the situation and ordered his units to turn directly into the ambush. This decision resulted in routing the attackers with several enemy KIA [Rick’s note: KIA means “killed in action”]. LTJG Kerry emerges as the acknowledged leader in his peer group. His bearing and appearance are above reproach. He has of his own volition learned the Vietnamese language and is instrumental in the successful Vietnamese training program. During the period of this report LTJG Kerry has been awarded the Silver Star medal, the Bronze Star medal, the Purple Heart medal (2nd and 3rd awards). NAVPERS 1611/1 (2-68), ONLINE. Originally published, 1968. Kerry. Available: http://www.johnkerry.com/pdf/jkmilservice/Fitness_Reports.pdf [August 21, 2004], p. 22.

  The report contains a checkbox item. In response to the comment/question “Weaknesses should be discussed with the officer — has this been done?” Elliot marked the box “NO SIGNIFICANT WEAKNESSES NOTED” [Rick’s note: Capitalization is in the original.]

The vehement attack of the not-so-swift boat veterans is based on their anger that Kerry talked about the atrocities in Vietnam when he returned and that he called them “atrocities.” Apparently, speaking the truth pisses these guys off; that atrocities did occur in Vietnam is a secret only to those who don’t know or refuse to believe My Lai ever existed. One of the SBVT, Van Odell, complains that he “went to university and was called a baby killer and a murderer because of guys like Kerry.” The irony, as the New York Times story notes, is that,

The strategy the veterans devised would ultimately paint John Kerry the war hero as John Kerry the “baby killer” and the fabricator of events that resulted in his war medals. Zernike and Rutenberg, supra. [Rick’s note: War medals, by the way, which some of them previously said, some of them in writing, on official documents, he earned.]

And they do so knowing they’re lying.

New York Times v. Sullivan: Defamation of Public Figures

In the world of normal people, when someone slanders or libels you, particularly if it damages you in some way, you may be able to sue them to recover for the damages. In some situations, this can include punitive damages aimed at helping them learn a few social graces; after paying punitive damages, they’re less likely to slander or libel again.

This is nearly always a pain in the neck, but never more so than when you are a public figure.

In 1964, in the case of New York Times v. Sullivan, the United States Supreme Court established a very high standard for public officials who wanted to sue for defamation. Under the later cases of Curtis Publishing Co. v. Butts (1967) and Associated Press v. Walker (also 1967), the principles were extended from public officials to include public figures; this includes people running for political office.

As some of you may guess from the dates, New York Times v. Sullivan occurred during the great period of advancement of civil rights for African-Americans. In Sullivan, the police commissioner in Montgomery, Alabama sued the New York Times because of a political advertisement. The ad detailed specific instances of attempts to supress the civil rights of African-Americans which, the commissioner claimed, anyone reading the story would think him ultimately responsible for. In his mind — and of a couple of witnesses he was able to rustle up — this defamed him, personally. To make matters worse for the defendant New York Times, some of the statements turned out to be false.

The Supreme Court of the United States held that,

[T]he rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. We further hold that under the proper safeguards the evidence presented in this case is constitutionally insufficient to support the judgment for respondent. Sullivan, supra, 376 U.S. 254 at pp. 264-265; footnote deleted.

In coming to this conclusion of law, the Court noted that to hold otherwise might impermissibly chill freedom of speech. Sullivan, after all, had been awarded — and remember that this is the mid-1960s — half-a-million dollars in punitive damages against the New York Times. Perhaps partly because of his success, the New York Times was facing numerous similar lawsuits totally millions of dollars which would have effectively forced them into bankruptcy and out of publication. It would be hard to imagine anything chilling speech more than the possibility of non-existence!

Furthermore, the ability to criticize public officials and the government is a requirement of an effectively-functioning democratically-driven government, such as the United States of America used to be. And,

[Such c]riticism . . . does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations. Sullivan, supra, 376 U.S. 254 at p. 273.

However, the Court also noted that,

Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. Sullivan, supra, 376 U.S. 254 at p. 269; footnotes deleted.

In other words, people do not enjoy unlimited freedom of speech, free of any constraints whatsoever. (The most famous statement to this effect was made by Supreme Court Justice Oliver Wendell Holmes in Schenk v. United States, 249 U.S. 47 (1919), when he noted that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”)

In particular, the rule the Court enunciated in Sullivan was that the Constitution required,

[A] federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Sullivan, supra, 376 U.S. 254 at pp. 279-280; emphasis added.

The Court held up a Kansas case as providing “a like rule” in another libel case against a newspaper and said,

In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office. Sullivan, supra, 376 U.S. 254 at pp. 281-282, quoting Coleman v. MacLennan, 78 Kan. 711; 98 P. 281 (1908).

In both Sullivan and Coleman, the plaintiffs — that is, the people who felt they had been defamed, lost. In Coleman, the candidate was seeking re-election and the newspaper article criticized his official conduct in connection with a school-fund transaction. The Court there held that even though what the newspaper published may not have been true, the paper published it in the good faith that it was true; they honestly believed it to be the truth and had no knowledge otherwise. In Sullivan, the Court held similarly, but with the added problem for Sullivan that the Court felt he had not even made a good case showing that the allegedly-libelous statements were made about him, as opposed to about someone else.

So in both these cases, the Court said, it didn’t matter whether the statements were false. And it didn’t matter if the plaintiffs had been defamed. Freedom of speech demanded protection for the newspapers who had reported the stories.

What of Kerry?

Where, then, does that leave Kerry? If the SBVT have lied about John Kerry, so what? After all, he’s a public figure. Similar to the situation of the Attorney General, running for re-election in Coleman, Kerry is a Senator and is running in a much more important race, the presidential election. Just as in Sullivan, where some of the statements were shown to be definitely, without a doubt, false, and yet Sullivan did not prevail, so, too, one might think that Kerry is up a creek without a swift boat.

There’s just one minor, one small, one teensy-weensy problem.

In explicating the constitutional rule regarding speech critical of public officials, the Supreme Court had emphatically stated that such speech was protected,

[U]nless he [the plaintiff] proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregardof whether it was false or not. Sullivan, supra, 376 U.S. 254 at pp. 279-280; emphasis added.

But,

Several of those now declaring Mr. Kerry “unfit” had lavished praise on him, some as recently as last year. Zernike and Rutenberg, supra.

Indeed, as I noted above, Lieutenant Commander George Elliot had said that in the combat environment, “Kerry was unsurpassed.” He had noted that he and his units “were taken under fire from ambush” and that Kerry, disregarding his potential loss of life, “ordered his units turned directly into the ambush.” Furthermore, Kerry, he said, “emerges as the acknowledged leader in his peer group.” And “[h]is bearing and appearance are above reproach.” (NAVPERS 1611/1 (2-68), ONLINE. Originally published, 1968. Kerry. Available: http://www.johnkerry.com/pdf/jkmilservice/Fitness_Reports.pdf [August 21, 2004], p. 22.)

Roy Hoffman, who formerly said of Kerry that he was “not going to say anything negative” because Kerry is “a good man,” (Zernike and Rutenberg, supra.) is now saying that Kerry is unfit for command because “[i]t is a matter of his judgment, truthfulness, reliability, loyalty and trust.” (Swift Veterans Quotes, ONLINE. 2004. Swift Boat Veterans for Truth. Available: http://www.swiftvets.com/index.php?topic=SwiftVetQuotes [August 21, 2004].)

And this type of list — historical comments made by the veterans who comprise the Swift Boat Veterans for Truth first lauding Kerry and later contradicting those statements to condemn him — goes on. Additionally, some of these men claim to have served with Kerry because, as one article put it, they “were on the river that day.” (Michael Dobbs, “Swift Boat Accounts Incomplete And Flawed” Washington Post (August 22, 2004).) It’s particularly interesting to note that the men who were actually on the same boat with Kerry are “fiercely loyal to [him] and frequently appear[] with him at campaign events” while those who “were on the river that day[,]” but not immediately present with Kerry “dislike him intensely and is doing everything it can do to block his election.” (Michael Dobbs, “Swift Boat Accounts Incomplete And Flawed” Washington Post (August 22, 2004 [note that the publication date online is listed as August 22, 2004]).)

Nevertheless, the crucial point concerns the question of “actual malice.” And the United States Supreme Court in Sullivan defined that as making a libelous statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” (Sullivan, supra.) So Kerry would need to show that the SBVT made their statement with such knowledge, or reckless disregard.

And unlike in Sullivan that, it seems to me, should be easy to prove. For even if the SBVT wish to argue that they don’t currently know the things they are saying to be false, the question becomes, as District Attorney Jack McCoy on “Law & Order” so often puts it,

Were you lying then? Or are you lying now? “Jack McCoy,” character on Law & Order NBC (date unknown; episode unknown).

The fact that the same men made contradictory comments at different points in time about the same events should, at the very least, clue them in to the possibility that at one time, they might have been lying. Any men who claim to have been steadfast in comments now allegedly false and who claim to honestly believe them, should be tipped off to the likely falsehood by the fact that other members of the SBVT made such obviously contradictory comments. And particularly in the case where they were not present at the events they purport to comment upon, this might tip them off to the potential that what they said, about events which they could not have witnessed, might be false.

It seems to me these Not-So-Swift Veterans for Truth have knowledge of the falsity of their claims; at the very least, they are in reckless disregard of the truth. They remain angry because Kerry stated before a congressional committee that atrocities were committed durin the Vietnam war. It appears they do not care whether their comments about Kerry are true, so long as the man who they feel maligned them cannot become President of the United States.

Conclusion

The actions of the SBVT, to the extent that it appears to be a smear campaign not based in fact, where the SBVT themselves formerly praised Kerry’s war time activities and seem now angry because of his post-war activities, are harmful to the political process and to we, the people, who must elect a President in 2004. The American public claims not to like “dirty campaigns” and yet time after time it’s been proven that they work. This is why there is so much more dirty campaigning. But as more and more groups and individuals push the envelope on the truthfulness of their attacks, it becomes more and more difficult for voters to obtain information upon which to base a sound, logical and beneficial choice for public officials.

Rather than complain that the SBVT are “illegally coordinating its efforts with the Bush-Cheney campaign,” I’d like to see Kerry sue them for libel and defamation of character. He may not wish to do this because, unfortunately, the average American, failing to consider the consequences to their own ability to vote and may turn on Kerry.

But somewhere, someone, has to draw a line. Heavily-funded libel should not be allowed to decide something as important as the future of our country.

More Information

• CBS News: “Kerry Files Attack Ad Complaint” (dated August 20, 2004; last visited August 21, 2004)
• New York Times: “Friendly Fire: The Birth of an Anti-Kerry Ad” (dated August 20, 2004; last visited August 20, 2004)
• Washington Post: “Swift Boat Accounts Incomplete And Flawed” (published August 21, 2004 [note that the publication date online is listed as August 22, 2004]; last visited August 21, 2004.)
• Disinfopedia: “Swift Boat Veterans for Truth” (last visited August 20, 2004)
• Wikipedia: “Swift Boat Veterans for Truth” (last visited August 20, 2004)
• The Washington Times: “Conservatives back Swift boat critics” (dated August 5, 2004; last visited August 20, 2004)
• Houston Chronicle: “Subsidies make Iraq gas cheap” (dated June 5, 2004; last visited August 20, 2004)
• Gadflyer: “The Fraud of ‘Sound Science'” (dated May 5, 2004; last visited August 20, 2004)
• KRON 4, Bay Area New Station, “Study: Tax Burden Shifts to Middle Class” (dated August 13, 2004; last visited August 20, 2004)
• Different Strings: “GOP historical revisionism and the politicization of 9/11” (dated August 18, 2004; last visited August 20, 2004)
• Slate: “Republican Revisionism” (dated December 22, 1996; last visited August 20, 2004)