The latest, and truly despicable, dirty trick of the current campaign is a flyer and website that attacks John McCain by suggesting that he is some sort of Manchurian candidate who is both using his POW experience as a sympathy ploy to get elected and once in power will be controlled by shadowy outside forces to America’s detriment. They also suggest that he betrayed his fellow POWs. This strikes me as more than enough to meet the test for libel from New York Times v Sullivan. Like John Kerry in 2004, McCain would have an excellent case to make even under the very restrictive actual malice standard that public figures such as McCain must prove. I won’t link to the Vietnam Veterans Against John McCain website because I don’t think they deserve to have their speech amplified. TPM has a copy of the flyer and links to the original website.
Reports say that McCain is hitting back against this, but really, who does he hit? There may be no effective answer to this kind of libel, even for a sophisticated and well-funded political candidate with almost limitless access to mass media. Once defamed in this way, it is not clear that McCain can undo the damage through his own speech and speech on his behalf. Even if most people reject these charges (and most people will) McCain’s reputation still suffers damage. A lawsuit after the campaign is over will have no effect on the South Carolina primary this weekend. Will bringing such groups out into the open help? Will their behavior and speech be affected by public scrutiny?
Perhaps we need to resuscitate the criminal law of libel for a very narrow class of especially damaging kinds of politically motivated attack? Attacks like this one don’t appear to contribute anything to public debate about who would be the best president and fail to promote any of the usual goals of free speech. It would be very difficult to come up with a positive argument for protection of this sort of defamatory attack.
Unfortunately, this is only one of an already depressingly large number of shadowy and sneaky defamatory attacks in this campaign and they aren’t going away. They pose real problems for free speech theory and we should discuss some of these in class.
Updated again: The story gets a bit more complicated. The flyer has never been distributed except to media outlets and the group behind it has no money to place ads on tv or to distribute their information other than sending things to local media and to their email list of supporters. Far more attention to this story has come from the McCain campaign’s pushback, media coverage, and people like me writing about it. My earlier argument that McCain has no real way to undo the damage was, it now seems, an over-reaction in light of this new information since it appears that if he had ignored the whole thing, few people would likely have known anything about this group and its libelous charges.