By stlcofcc
KMOV Channel 4’s TV newscast night before last at 6 PM had a story, that stated that St. Louis County Circuit Attorney Bob McCulloch and St. Louis City Circuit Attorney Jennifer Joyce, both Obama supporters, are implying that they will bring criminal libel charges against anyone who levels what turns out to be false criticisms of their chosen candidate for President.
In 1964, the U.S. Supreme Court issued a landmark decision, New York Times vs Sullivan, that set the benchmark for libel vis-a-vis “public figures,” of which Barack Obama is certainly one. If a public figure brings a civil libel lawsuit against an individual or a group, then s/he has to prove to a civil jury (usually nine out of twelve jurors) that a preponderance of the evidence (i.e. it is more likely than not) shows that the defendant(s) knowingly said or wrote something factually incorrect about the plaintiff(s). If a prosecutorial authority brings criminal libel charges against a defendant on behalf of a plaintiff, as McCulloch and Joyce are threatening to do, then the prosecutor has to prove beyond a reasonable doubt to twelve out of twelve jurors that the defendant knowingly said or wrote something factually incorrect about the defendant.
The two key concepts here are “knowingly” and “factual.” Successful civil libel lawsuits brought by public figures are exceedingly rare, because it’s very difficult to prove that the defendant “knowingly” said or wrote something factually incorrect. Criminal libel prosecutions thereof, because they require a unanimous jury and a higher legal standard of proof, are virtually impossible.
(UPDATE 9/26: There is still an effort to find out if Missouri has criminal libel provisions.)
As for “factual,” it means that the statement made cannot relate to an opinion. If you say that Barack Obama isn’t really a Christian, (something which Joyce and McCulloch say they’re going to crack down on, perhaps trying to put the kibosh on the “Obama’s a Muslim” rumors), that’s not a statement of fact, because religion is mostly subjective. The Catholic Church still really doesn’t consider Protestants to be Christians, and in some cases, some radical Protestants don’t think that Catholics are really Christians. Therefore, if one says that Barack Obama isn’t a Christian, it isn’t actionable, because it’s somebody’s opinion. Now, if Obama were a Catholic, and really was Confirmed as such, and someone for whom that it can be proven does know he is a Confirmed Catholic goes out and says that he isn’t, that’s actionable. The reason is that Confirmation in the Catholic Church is (usually) provable by ecclesiastical records.
In other words, virtually nobody that levels criticism at Barack Obama can be charged criminally for doing so. Hardly anyone else can be sued.
However, in the opinion of this writer, Bob McCulloch and Jennifer Joyce are, at the behest of the Obama campaign, ratting sabers to intimidate people from criticizing Obama. If my contention is correct, then if anyone will face civil or maybe criminal liability from the U.S. Justice Department, the U.S. Attorney’s Office in St. Louis, it’s McCulloch and Joyce themselves. It is not beyond the realm of possibility, in my opinion, that their threats violated Federal Civil Rights laws, two public authorities might well be forcing a “chilling effect” on 1st Amendent free speech. If Barack Obama or any of his people have any fingerprints on this, they could be sent up the river as well.
***
UPDATE 9/25: Gateway Pundit found the KMOV video; while neither Joyce nor McCulloch say they’re going to apply criminal libel statutes to Obama critics, the implication is very clear. (In the time after the news tory, Joyce denied that she will prosecute anyone, but, again, the implication is clear). Also, we find out that certain Missouri “law enforcement officials” are part of this, including that known Democrat hack, Jefferson County Sheriff Glenn Boyer. (Hint: Boyer was a big loudmouth against conceal-carry). The implication here is also clear — if people with badges and guns are getting involved, they want Obama critics to shut up lest some cop will arrest them and send them to jail. We also found out from this news clip that this is indeed all at the behest of the Obama campaign.
I think there is enough evidence to bring Federal civil rights lawsuits against Joyce, McCulloch, Boyer, and whoever in the Obama campaign approved this, and whatever prosecutors and law enforcement officials have pledged to become part of this.
What I have noticed is that, other than this KMOV story which had to be dug up from the bottom barnacles of their own website, it hasn’t been mentioned anywhere else in the local MSM, not the Post, or the other TV channels. Why not?
***
UPDATE 9/26: “Bob F” e-mailed this:
Just wanted to add to your post regarding “The Truth Squad” – for libel, you need to show damages, which usually means money losses.
Not completely positive what the source or jurisdiction was, but remember from law school that NOT winning an election isn’t considered to be a compensable type of damage. So, I doubt libel would gain any traction.
Plus, “political speech” is the most protected form of speech in the category-ranking of which type of speech can be stopped.
Finally, if the lawyers in the TV spot really are aiming at one side only, I believe they are in direct violation of the Mississippi bar ethics rules.
Bob F., I think this only applies to civil torts for libel. The implication by bringing prosecutors and law enforcement authorites into this “truth squad” is that people will face criminal charges for libel, in which case, damages on the part of one party is not a question. We’re still trying to find out whether MO has criminal libel statutes.
“James” writes:
In regards to your blog post on the threats by Missouri authorities to pursue criminal charges, you are correct: this is a violation of civil rights. You mention First Amendment issues (the suit would likely be for First Amendment Retaliation (under 42 USC Section 1983) if they follow through on their threats. However, even the threats themselves may be illegal – under the KKK Act (42 USC Section 1985) it is unlawful for two or more persons to form a conspiracy to use threats or intimidation to prevent the exercise of civil rights (including voting). Although the courts have generally restricted the claim to threats against protected classes of people (i.e. the suit against antiabortion protesters was thrown out), there may be a stronger case that threats by government officials to prevent the exercise of political rights are covered by the statute.
***
UPDATE 9/26 12:20 PM: Rush Limbaugh mentioned the story, and that he found it on Gateway Pundit. Rush did not mention that Gateway Pundit found it here. REMEMBER: YOU READ IT HERE FIRST.
***
UPDATE 9/26 2:20 PM: Matt Drudge has the story. He links directly to the KMOV video. Drudge is not the type to corroborate stories using blogs. Be that as it may: REMEMBER: YOU READ IT HERE FIRST. Rush covered it, Drudge covered it, so this story will now have legs. The ball is now in Catherine Hanaway’s court.
***
UPDATE 9/26 7 PM: Michelle Malkin has picked up on it. She links to Gateway Pundit’s coverage, but again, fails to mention that this medium broke the story. Still, I’m glad the story is taking more legs. Though, REMEMBER: YOU READ IT HERE FIRST.
***
UPDATE 9/27: World Net Daily has it now, and many other websites and blogs. Though, as usual….ah, forget about it. You know by now. I will say that, even if this medium is not cited to the extent that it should be by the big names that are running with this story, I’m proud to have influenced the news cycle just a little bit, and that for once, other blogs are blockquoting me, and not the other way around.
Your blogmeister was a caller to Randy Tobler’s show this morning on 97.1 FM Talk, and discussed the “Obama Truth Squads.”
Also, there seems to be retort to this story, that neither Joyce nor McCulloch actually said they’re going to sue or prosecute anyone. I’m sure we’ll hear that defense in the days to come, especially if Catherine Hanwaway gets interested. The trouble with that defense is, the KMOV video shows one of those two saying that they’re going to “take action.” Now, how else do cops and prosecutors “take action” on something? If prosecutors and cops got together and said they’re going to “take action” on meth labs, do you think this means they’re going to picket in front of meth trailers? Write letters to the editor of the P-D about the dangers of meth? No, it means they’re going to ride in cowboy into the meth trailers, turn tables upside down, put people in handcuffs, take them to the Graybar Hotel, and hopefully keep them there for quite awhile.
The implication is very clear.
