The Nebraska Supreme Court's majority opinion in a case involving dirty campaign tricks may lead to an opportunity for the United States to take a look at what defamation is in the context of a political campaign. The governing case in the nation right now is nearly 50 years old. The time for a new look may be ripe!
And the split decision of the Nebraska Supreme Court in Moats v Nebraska Republican Party (April 28, 2011), makes a distinction that seems to invite further review. Rex Moats, a candidate for the nonpartisan Nebraska Legislature, was attacked with a series of mailings the Court found to be "misleading" but not "false" when they reached voters. Moats, a registered but marginally active Democrat, has a personal history of support for Republican candidates and conservative causes. The Republican Party assailed him anyway. It used mailings questioning Moats' work with National Warranty Insurance Group, a Lincoln-based vehicle-repair insurance company that failed in 2003.
The Nebraska Court's unsigned opinion summarizeed mailings and held "examining the totality of the circumstances, we note that this statement appeared in a political campaign brochure. It was written to persuade voters to vote against Moats through the use of both rhetoric and hyperbole -- namely that National Warranty was 'shady' and that Moats would choose it over Nebraska consumers."
In an interview with Lincoln Journal Star, Moats' attorney, David Domina, said he was "respectfully disappointed at the Supreme Court's decision to hold that 'misleading statements' do not amount to the same thing as 'false statements.' Does not a student who misleads a teacher, lie to the teacher?" Domina asked. "Does not a witness who misleads a State Patrol investigator lie to the investigator? Do not the parents of our state work hard in our homes to teach our children that misleading is lying? And, does not a campaign that misleads voters, lie to them? After all, what is wrong with straight talk?
"I think voters in Nebraska believe they are entitled to the protection of the law against both false and misleading campaign statements," he said. "It is hard to imagine that voters would think there is any difference. I don't."
Lincoln Journal Star article continues, State GOP Chairman Mark Fahleson hailed the ruling. "This was nothing more than an attempt by Nebraska Democrats to force the Nebraska Republican Party to spend resources and time on a frivolous lawsuit rather than enacting the conservative principles for which we stand," he said.
Said Domina: "This opinion is no victory for Republican Party. It is a loss for every Nebraskan."
Moats and Domina are actively analyzing a possible petition for a writ of certiorari with U S Supreme Court.
| Lincoln Journal Star Article 
Watch Second Oral Argument
Watch First Oral Argument
| July 2010 News Article