Gloves are coming off — and being replaced by lace

What kind of tea-sipping, lace-doily, pinky-finger-pointing kind of politics are we going to be left with if every failed candidate can run crying to the courts and get a $150,000 tort jackpot just because his opponent said something mean about him?

A politician claiming he was libeled is like a boxer claiming he was assaulted. If you can’t take a punch, don’t get in the ring.

On Monday, state Sen. Mike Schneider’s insurance company shelled out $150,000 to settle a five-year libel case brought against him by Danny Tarkanian, son of the former UNLV basketball coach and the Las Vegas city councilwoman. A $50,000 libel judgment was handed down by a Clark County jury the previous Friday, and the same jury was about to deliberate whether to assess punitive damages, which could have amounted to as much as $300,000.

Tarkanian claimed he’d been defamed during his 2004 election campaign against Schneider, because his opponent sent out mailings saying he did work for telemarketing firms accused of scamming the elderly. It was suggested Tarkanian escaped by turning state’s evidence.

Tarkanian admitted he was a registered agent for several telemarketing companies that were indicted on fraud charges, but he claimed he merely did legal work for the companies and knew nothing of any fraud.

Now, libel is not merely the act of saying something unkind about another. There are legal elements that must be established, and for a public figure, such as a candidate for state Senate, the bar is especially high. Or it was.

To prove libel, a statement must be false. It must be defamatory and damaging. It must be disseminated to a third party. You must prove all of them. Not just one.

Was the information false? He did incorporate companies later investigated. He was not prosecuted. How do you prove falsity?

These were circumstances ripe for innuendo and connecting the dots. Does that make what Schneider said provably false? Or is it a matter of interpretation and connotation and splitting hairs over what words were used?

In fact, a piece of evidence at trial offered still another view of things. When Tarkanian ran for another office in 2006, he sent out a flier claiming he was exonerated in the telemarketing probe. That prompted former federal prosecutor Leif Reid — yes, son of the Senate majority leader — to send a scathing letter saying that claim was “patently false, defamatory, and holds me in a false light.”

Reid went on to note “there is a significant difference between not being indicted for illegal activity and not being involved at all.”

As for defamation, Tarkanian’s a lawyer and a politician. How much lower in esteem can one get?

Damages? He lost the state Senate election as a Republican running in a heavily Democratic district. Has he lost any legal clients because of the allegations? If so, where’s the evidence?

As a public figure, Tarkanian had to prove actual malice or willful negligence. The first is a given in a political campaign and the second is pretty hard to prove in a rapid-fire, rough-and-tumble race. Jurors have to be mind-readers.

The biggest chunk of the jury award, $30,000, was for what Schneider said about the telemarketing probe on an obscure cable television program called “Face to Face with Jon Ralston.” That brings us to dissemination. Was there a single witness presented who actually saw the program? Might be hard to find.

Schneider said in a statement: “I was very disappointed with the jury’s verdict in the Tarkanian case against me. I believe this decision will have devastating ramifications on future campaigns and a chilling effect on free speech in general.

“I am fairly confident we would have reversed the decision at the Supreme Court. However, this matter has been a five-year ordeal and it was time to put it to rest.”

What does it say about justice when winning in court comes down to outlasting your opponent’s willingness to expend time, money and personal aggravation?

In a political campaign, the bar should be much, much higher. A politician should be allowed to lie about an opponent — and then get caught in the act.

Yes, there have been recent campaigns in which incumbents were subjected to outright lies. Even if enough gullible voters were swayed by the dirty tricks, that is no reason to jettison our free-wheeling, bare-knuckled political donnybrooks for lace-glove treatment.

What one candidate says about another says more about that person’s character than it says about his opponent. If we assume voters are too stupid to figure it out, eventually, democracy is a failed experiment.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.

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