To the DNC: Sue us

A Free Republic poster writes that he’s a regular reader who enjoys our views on a variety of issues. He writes that he’s enjoyed our posts in which we use our skills as lawyers to weigh in on legal issues. He draws our attention to the cease-and-desist letter from an attorney representing the DNC to Free Republic. He asks whether the letter’s threat of of a defamation claim is bona bide or not. In my view, the letter is sheer thuggery that recalls the same maneuever made on behalf of John Kerry in the 2004 campaign.
He writes that the attorney representing the DNC has sent two such cease-and-desist letter, one to him and one to XM Radio. The letters relate to his post headed “Howard Dean told Kansas Gov. Sebelius to Lie” in which he relayed something he heard earlier that morning on an XM talk radio show called The Quinn & Rose Show.
Our reader writes that he was listening to the Quinn & Rose show when host Jim Quinn told his audience that Howard Dean called Kansas Governor Kathleen Sebelius early one morning after the tornado had destroyed the town of Greensburg, Kansas. According to Quinn, DNC Chairman Howard Dean discussed with Governor Seblius what to say about the tornado and how to blame the war in Iraq and the Bush administration for a slow response to the aftermath.
According to our reader, Quinn also said that Governor Sebelius called Senator Sam Brownback’s office only to learn he wasn’t there, but then called him on his cell phone and reached him while he was in his car. Our reader relates Quinn’s report that Governor Seblius confessed to Senator Brownback that she had been instructed by her party leadership (Howard Dean) on how to politicize the tornado’s destruction of Greensburg and attack the White House and the Iraq war for a seemingly slow response. She reassured the Senator that she didn’t blame him or fellow Kansas Senator Pat Roberts for the purported slow response.
As Raw Story reports, the War Room site of the Quinn and Rose show still alleges that the Dean-Sebelius conversation took place. Raw Story also reports that Governor Sebelius has issued the following statement:

I am outraged that the Quinn & Rose show has aired a report suggesting that my efforts to highlight the need to replace National Guard equipment lost in Iraq are inspired by anything other than my responsibilities as commander-in-chief of the Kansas National Guard. The accusation that I received a call from anyone, encouraging me to take on this issue following the devastating tornado in Greensburg, is one-hundred-percent false — period.
Making up stories like this, designed to turn the tragedy at Greensburg into some kind of political circus, is a shameful affront to the citizens of Greensburg and the citizen soldiers of the National Guard.

The attorney who sent the letter on behalf of the DNC is attorney Joseph Sandler, representing the Democratic National Committee. In my view, Sandler is a thug representing a bunch of reprobates and bullies. Here’s why.
Under the First Amendment, as construed by the Supreme Court in New York Times v. Sullivan, citizens are protected from defamation claim by public figures so long as the statements in issue are lacking in “actual malice,” i.e, knowledge of their falsehood or reckless disregard as to whether they are false or not.
Accordingly, our reader’s Free Republic post based on the statements of Jim Quinn is constitutionally immune from a defamation claim. Whether Quinn and those who broadcast his program have such immunity is a different question, but the same constitutional protection applies to them. Professor and First Amendment expert Eugene Volokh coincidentally makes a closely related point based on the Sullivan case today.
“Actual malice” is a tough standard for public figures to overcome. That’s why defamation claims by public figures have essentially disappeared since the Sullivan case. Under the Sullivan case, the First Amendment affords wide latitude for the discussion of public figures as well as issues of public concern.
Sandler’s letter to Free Republic incorporates no element of “actual malice.” It is couched in the traditional common law of defamation that the Supreme Court killed for public figures in the Sullivan case. Sandler’s letter carries Governor Dean’s denial of Quinn’s assertions, but it does not even allege that Jim Quinn had knowledge of the statements’ falsity or made them with reckless disregard of their truth or falsity.
We therefore associate ourselves with our reader’s statements regarding Governor Dean and invite Mr. Sandler to sue us for defamation as he threatens to sue Free Republic. This is to put him and his client on notice, however, that we intend to seek our attorney’s fees under federal law for the assertion of a frivolous claim if he does so.
UPDATE: We’ve heard directly from the Brownback campaign as follows:

Just to be clear, the call between Sebelius and Brownback never happened. I don’t know what the source here is, but the existence of the phone call has been fabricated out of thin air.

I don’t know what the source here is either and I take the denials of the DNC and the Brownback campaign at face value. My point is not an endorsement of the truth of the statements made by Jim Quinn that were related on Free Republic. If Jim Quinn made up the story, that is reprehsensible.
My point is that the DNC letter threatening Free Republic with a defamation lawsuit on behalf of the Democratic National Committee is an act of thuggery, akin to the threats that faced Sinclair broadcasting at the end of the 2004 campaign. The DNC’s threat against Free Republic is not well grounded under the First Amendment and the DNC’s warm-up for the 2008 campaign should be stuffed now.
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