ROWAYTON, CONN. — How do we make America's 2008 presidential campaign more honest? With lawsuits – lots of libel lawsuits, to be specific.
Now we may need a bit of help from the United States Congress, and we may need the Supreme Court to look the other way, but, heck, such lawsuits would most definitely be in the public interest.
Return with me now to March 1964, when Justice William Brennan, writing for an essentially unanimous Supreme Court, delivered the landmark decision in New York Times Co. v. Sullivan.
The court ruled that a public official cannot maintain a libel lawsuit against a publisher of an aspersion, disparagement, denigration, or the like, unless that public official can show that the damaging description or portrayal was published with actual malice.
In other words, a public official can only win a libel action if that plaintiff can prove that the damaging item was not only false, but – in addition – was published with actual knowledge that it was false or was published with reckless disregard as to whether it was true or false. OK, enough law stuff.
While the Times v. Sullivan decision was sound, admirable, and truly in keeping with the best tenets of the authors of the US Constitution, a teeny-weeny exception could be just the thing to rein in the campaign slurs that are soon to be launched.
The exception: Just assume that any candidate for the presidency who disparages another candidate for the presidency is doing so with malice, with knowing falsehood, and with reckless disregard for truth. It comes with the territory.
This little exemption would allow a presidential candidate who deems himself or herself directly slandered by another candidate to sue that person for defamation. That way, we pit the defamed against the defamer, and the press is left out of it.
Imagine that John McCain, or one of the ads he approves, says something particularly disparaging about Barack Obama. We would get Obama v. McCain – in a court, under oath. Or suppose Hillary Clinton, or one of her ads, says something especially critical of Rudy Giuliani. We would get Giuliani v. Clinton in court, under oath. Or we might get Edwards v. Romney in court and under oath.
With expedited trials prior to Tuesday Nov. 4, 2008, the American electorate would get what no political action committee, Federal Election Commission, or editorial board is able to elicit reliably – candidates swearing to tell the truth, the whole truth, and nothing but the truth. Plus, candidates (and their slandermeisters) would face pecuniary peril. They would have to pay hefty legal fees and run expensive retractions for any malicious falsehoods.
Run a negative ad as a presidential candidate, and you run the risk of a negative verdict prior to Election Day.
In a court of law, the dissembling and evasiveness and sidestepping (which are the hallmarks of so many utterances by politicians) would be interrogated, exposed, and legally challenged. The alleged defamers would have to produce real evidence and sworn testimony to back up their aspersions.
With presidential candidates under oath, we might actually get some truth – and consequences for those politicians who deserve them.
• Joseph H. Cooper was editorial counsel at The New Yorker from 1976 to 1996. He now teaches media law and ethics at Quinnipiac University in Hamden, Conn.