Perspectives: Ford v. Kavanaugh: privilege of defamation.

Byline: Marshall H. Tanick

"Slander is sharper than the sword."

W. Shakespeare, Cymbeline (1610)

The conflagration during the recent Supreme Court confirmation of Brett Kavanaugh left a bevy of questions unresolved. But as the charges and countercharges linger, one matter that continues to be overlooked in the did-he-or-didn't-he mystery on the Potomac is the issue of defamation.

Accusations of sexual impropriety against President Donald Trump's nominee for the high court as well as responsive allegations of prevarication or worse against his principal accuser, Christine Blasey Ford, and others who ventured forward with their own tales of torment and aberrant behavior could fall within the classification of defamation, a legal tenet consisting of false statements of fact that harm the reputation of the subject of the remarks; slander if uttered orally and libel when memorialized in writing, electronically or other permanent form. Ferrell v. Cross, 557 N.W.2d 560 (Minn. 1997).

Among the many lingering questions, which neither the limited FBI inquiry or prior or ensuing Senate proceedings addressed, let alone resolved, is whether Kavanaugh can sue his accusers for defamation or, conversely, if they could pursue litigation against him or others who publicly condemned them for their mendacity. The inquiry draws upon many sources, including some here in Minnesota.

Kavanaugh kerfuffle

The answers to those questions, like so much of the Kavanaugh kerfuffle, are muddled. As a threshold matter, statements that constitute opinions rather than assertions of provable facts are not susceptible to suit. Milkovich v. Lorain Journal, 497 U.S. 1 (1996); Capan v. Daughterty, 402 N.W.2d 561 (1987). The party claiming to be defamed must prove the statements to be materially false. Masson v. New Yorker Magazine, 501 U.S. 496 (1996); Stuempges v. Parke, Davis & Co., 297 N.W.2d 252 (Minn. 1980). This burden often can be difficult to satisfy. By the same token, parties defending defamation claims by asserting truth, may encounter an even greater difficulty proving a negative that is something, namely a sexual assault, did not occur.

For public figures like Kavanaugh, defamation lawsuits can present nearly insurmountable barriers through the requirement of the renowned decision of the U.S. Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964), holding that they must establish that the offending remarks were made with "actual malice," meaning knowing falsity or reckless disregard for the truth. On the other hand, the justice's antagonists, Ford and others, would generally be deemed "private" figures, enabling them to sue and prevail on much lesser proof of negligence or carelessness, rather than intentional falsification. Jadwin v. StarTribune, 390 N.W.2d 437 (Minn. 1985).

This disparity has irked Trump, who called during the campaign and afterwards, for loosening the laws of libel and slander, making it easier for governmental officials and public figures to redress attacks on their reputations and seek monetary damages for harm to it. See "Trump defamation litigation faces towering obstacles," in the November 14, 2016, edition of Minnesota Lawyer.

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