It shouldn’t be so easy for politicians to lie, or be lied about.
By Robert Robb
A few weeks ago, I mulled the possibility of Maricopa County Recorder Stephen Richer challenging Kari Lake for the GOP nomination for U.S. Senate. I didn’t think that Richer was likely to beat Lake in a Republican primary. But he was well-positioned and capable of bursting her bubble, exposing her shallow bombast and hollow demagoguery. This was particularly true about the legitimacy of the Maricopa County election results in 2020 and 2022, a brief Richer knows cold.
That was my daydream. Richer, however, came up with a more effective and efficient way of potentially achieving the same result: he’s suing Lake for defamation.
According to Richer’s complaint, Lake has defamed him by repeatedly making two false claims: First, that he intentionally caused Election Day printers to spit out the wrong ballot size making it difficult for the tabulators to read. Second, that he injected a bogus 300,000 ballots into the counting stream.
News reports have consistently, and appropriately, noted how high of a legal standard a public official, such as Richer, has to meet in order to win a defamation case. I write to make two points. First, there shouldn’t be a two-tier standard in defamation cases. Second, on at least one of his claims – about the malfunctioning printers – Richer should be able to easily clear the higher hurdle. The damages could be, and should be, considerable.
In an ordinary defamation case, the plaintiff has to prove what was said or written about him was false, created damages, and the defendant either knew it was false or was negligent in not ascertaining its truthfulness.
In 1964, the U.S. Supreme Court ruled that for public officials, later expanded to include virtually anyone involved in a public controversy, that wasn’t enough. In such cases, the plaintiff has to prove what the court called “actual malice.” Under the Sullivan rule, rather than just showing that the defendant was negligent in not ascertaining the truthfulness of the defamatory statement, the plaintiff has to show that the defendant acted in “reckless disregard” of the statement’s truthfulness.
According to the court, this higher standard for public officials was required by the First Amendment, which is nonsense. There is nothing about having the freedom of speech that necessitates being granted a wider berth to defame some people because of their standing or the subject matter.
