COUNTERCOLUMN: All Your Bias Are Belong to Us

...and it seems to me that the Politico gets it exactly wrong.

Frankly, I don't understand this ruling at all, and I wouldn't be surprised if it is appealed by the Justice Dept. and/or House general counsel's office on behalf of Murtha. Murtha, who can say some inappropriate things once in a while, was clearly acting in his capacity as a lawmaker when he made the comments and is thus protected by the Speech or Debate Clause from any type of prosecution for official acts.

Therefore, this case should have been dismissed, and I hope it will be. It's not that I agree with what Murtha said. I don't know enough about the incident to have an opinion whether Wuterich or the other Marines did anything improper or illegal. But Murtha has a right to say what he did under the Speech or Debate Clause, even if he was wrong about what happened. When we start restricting what members and senators can say in the performance of their jobs, then we are really in trouble as a country.

As Stormin' Norman would say, that's a bunch of bovine scatology.

If those Marines can demonstrate damages, then Murtha committed a tort, and may properly be held liable for those damages.

It is not neccessary to have committed a crime in order to commit a tort. People are held liable for noncriminal negligence all the time. And O.J. Simpson, famously, was held liable for a tort even after being acquitted of the criminal charge of murder.

Further, there's nothing in the law that provides lawmakers extra-special immunity when besmirching, slandering, libeling or defaming citizens to the press. And that's not just me talking. That's the Supreme Court of the United States.

Indeed, they weren't exactly amorphous about making the point:

2. The Speech or Debate Clause does not protect transmittal of information by individual Members of Congress by press releases and newsletters. Pp. 123-133.

(a) There is nothing in the history of the Clause or its language suggesting any intent to create an absolute privilege from liability or suit for defamatory statements made outside the legislative Chambers; precedents support the conclusion that a Member may be held liable for republishing defamatory statements originally made in the Chamber. Pp. 127-130.

(b) Neither the newsletters nor the press release here was "essential to the deliberation of the Senate" and neither was part of the deliberative process. Gravel v. United States, 408 U.S. 606; Doe v. McMillan, 412 U.S. 306. P. 130.

(c) The newsletters and press release were not privileged as part of the "informing function" of Members of Congress to tell the public about their activities. Individual Members' transmittal of information about their activities by press releases and newsletters is not part of the legislative function or the deliberations that make up the legislative process; in contrast to voting and preparing committee reports, which are part of Congress' function to inform itself, newsletters and press releases are primarily means of informing those outside the legislative forum and represent the views and will of a single Member. Doe v. McMillan, supra, distinguished. Pp: 132-133.

3. Petitioner is not a "public figure" so as to make the "actual malice" standard of proof of New York Times Co. v. Sullivan, 376 U.S. 254, applicable. Neither the fact that local newspapers reported the federal grants to petitioner for his research nor the fact that he had access to the news media as shown by reports of his response to the announcement of the Golden Fleece Award, demonstrates that he was a public figure prior to the controversy engendered by that award. His access, such as it was, came after the alleged libel and was limited to responding to the announcement of the award. Those charged with alleged defamation cannot, by their own conduct, create their own defense by making [443 U.S. 111, 113]

That's about as clear as it gets.

The decision? 8 to 1. Or 7 to 2 depending on how you slice Justice Stewart, who filed a separate opinion concurring in part and dissenting in part.

Slam dunk.

Splash, out

Jason