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There are two candidates running for public office in a small midwestern city. Both of them are public figures, within the context of the defamation laws. Candidate A is running on a "morality" platform, cut funding for birth control and abortion, teach children abstinence in schools, etc.

He accuses candidate B of being "soft' on moral issues, and cites prevailing rumors/reports that candidate B's daughter was impregnated out of wedlock, and had an abortion. The truth is that the daughter is dating a man whose previous girlfriend "was impregnated out of wedlock, and had an abortion" by the man.

Is this grounds for a lawsuit? I can think of two reasons why this might be true. First the daughter might not be a public figure, and therefore would "normal" standards of defamation apply to her?Second, even if a suit by her were held to the higher public figure standard, might she be able to prove "malice or reckless disregard for the truth"?

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No. In the United States, it's easy to argue that the daughter, as a candidate's child, is a public figure, especially if she had appeared in any capacity on her father's campaign or spoke about her father in a political manner. This is the proverbial "Entering the Arena" that could hold her to public commentary. A good question as to whether or not she counts as a public figure is asking "But for the public remarks made by Candidate A, would the the daughter be unknown from the public or out of the media spotlight? Usually it would be a "N". As a general unwritten rule of campaigns children are off limits, but it's not a crime to disparage a politicians kids... just a public outrage.

Furthermore, in your second paragraph, Candidate A is citing prevailing rumors/reports that this did happen, so Mr. A did not make this up on his own, but repeated something from some other source. Since the rumor is already out there, it's something of public concern, which is not defamation. Candidate A could further mitigate the suit if he promptly apologized upon learning of the screw up and corrected the record. Either way, since he was speaking on a publicly available source (even if incorrect) his repeating of incorrect facts that at the time he believed were factual and relevent to the campaign.

In one particular way to get around defimation is to couch the terms in notions of other people's words. It is defamatory to say she had an abortion (a lie, she did not, and is injurious to her character) and a completely different thing to say "I have heard rumors that she had an abortion" (which is true). Whether or not "She had an abortion" is factual or false, it is factual that there are rumors, and it is factual that he has heard some rumors. He's not commenting on the verasity of the rumors, but the mere fact that the rumors exist and he is aware of them... but perfectly self-demonstrating: He just demonstrated the rumor's nature, thus proving the rumor exists, and he has heard about it (If it was started by connecting it to dirty politics, daughter has to prove that). Incidentally, this is why when we arrest someone who committed a mass murder spree that was captured on numerous security cameras and news footage, the news will refer to the individual as the "Accused Mass Murder First Second Third-Name" and not "Mass Murder First Second Third-Name", because under the eyes of the law, he's not-guilty until he pleas his guilt or is found guilty by the jury. If the News reports that he did it before a trial, (even if we watch the whole thing unfold on national tv) they can be sued by the accused because it's not yet true that he was guilty of mass murder.

  • "it's not a crime to disparage a politicians kids". That is inaccurate in the case of falsely imputed crimes. For instance, see MCL 750.370. That type of falsehoods is classified as misdemeanor, hence a crime, and it makes no exception. Thus, it also applies even if the defamed person is a politician's child. The lack of enforcement of such legislation is another story, and that does not change the actual and current legislation. – Iñaki Viggers May 21 at 19:35
  • @IñakiViggers: Not remotely what disparage means (generally means mean spirited opinionated statements about a person). My opinions are never considered factual statements, and again, cannot be defamatory. – hszmv May 21 at 19:43
  • Wrong on the "especially if" part about relatives being a public figure: it's only if. – user6726 May 21 at 19:45
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    @IñakiViggers: Canidate A is not a defamer per OP's scenario. The case has yet to go to trial. He is an accused defamer . And because of that mistake, you could now be sued by Mr. A for defamation of his own character, since at the moment, he is legally innocent of the crime. Had you merely used one additional word, you would have been safe, because at the time of speaking him, it is true, he is accused. But because you didn't you defamed him, because again, legally, at time of writing, he is not guilty of the crime. – hszmv May 21 at 20:15
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    I thought that if you repeat a rumor, you are as liable as if you made up the rumor. "A false statement is not less libelous because it is the repetition of rumor or gossip or of statements or allegations that others have made concerning the matter." -- Ray v. Citizen-News Co. – David Schwartz May 21 at 20:50
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Is this grounds for a lawsuit?

Yes.

would "normal" standards of defamation apply to her?

Yes. Unfortunately those "normal" standards imply that, in order to recover more than $1 for nominal damages, the daughter will have to prove that the falsehoods were made with actual malice (that is, with reckless disregard for the truth or despite knowing these were false) even if she is not a public figure.

Under pretext of protecting [defamer's] First Amendment rights, the defamer will not even be compelled to publicly retract his falsehoods even if these are disproved and patently false. That is the screwed state of affairs of U.S. defamation law.

even if a suit by her were held to the higher public figure standard, might she be able to prove "malice or reckless disregard for the truth"?

Yes. Candidate A's knowledge about the boyfriend's previous girlfriend reflects the great extent to which he must have investigated candidate B's situation & environment. That extent of scrutiny would be inconsistent with candidate A's subsequent denial --in court-- that he acted with actual malice at the time of deliberately publishing his falsehoods.

In denying the defamer's actual malice, it would be quite a stretch to pretend that the defamer (1) got confused between "daughter" and "daughter's boyfriend's previous girlfriend" (2) when making statements on a topic of great relevance for someone whose own campaign centers on a "morality" platform.

  • The candidate got the wrong person so he obviously does not know the statement is false. – Putvi May 21 at 19:03
  • @Putvi In contexts such as election campaigns, it is naive to buy the theory that the "opponent's daughter" was confused with the "opponent's daughter's boyfriend's previous girlfriend". The latter is too convoluted and too distant to be "innocently" confused with someone so directly related to the opponent in an election. – Iñaki Viggers May 21 at 19:10
  • You may be right, but if you had to prove it you could not. – Putvi May 21 at 19:11
  • As I pointed out in my own answer, the politician cites rumors/reports, so he's not the source of the false info, he's just using it on an attack. He's aloud to bring it up as the rumor/report was in the public sphere before he made the comments and at the time, the correction had not been made. – hszmv May 21 at 19:16
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    @hszmv I don't know why your professors failed you (nor even that they failed you), but that is irrelevant to defamation and to the OP's question. My point, again, is that prefixing a statement with language such as "there are reports that [...]" does not necessarily or automatically preempt liability under U.S. defamation law. Also, the position that a kid's sexual life pertains to public interest simply because "it's in the news" sounds morbid and it misleads those of the audience who are not knowledgeable of defamation law. – Iñaki Viggers May 21 at 19:57

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