Smears and Slurs without Legal Consequences: How the Law Protects Jerome Corsi's Malicious Attacks on Barack Obama, In His Book Obama Nation
	By JOHN W. DEAN
	Friday, Aug. 22, 2008

Corsi first gained wide public attention when he co-authored the 2004 work "Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry" that launched the fatal attacks on the Democrats' last presidential candidate. Now, Corsi's new book attacking Barack Obama has returned him to public attention once again. When blogger Digby addressed Corsi's latest trash-for-cash book -- "Obama Nation: Leftist Politics and the Cult of Personality" - she, like most observers, had few kind words for his offensive tome. Indeed, Corsi has been roundly and widely criticized by both the right and the left for his latest spate of viciousness.

There is considerable wonderment at how Corsi gets away with it. For example, people posting comments on Digby's blog wanted to know : "Why don't the victims of this kind of sliming sue? . . . I'm not sure that hitting back hard in the courts would be so bad in the court of public opinion, and a multi-million dollar verdict might make the major publishing houses think twice." Similarly, comments on Amazon regarding Corsi's handiwork expressed surprise that Corsi had not been sued, with many who posted assuming that because Obama has not sued, there must be some truth to the Corsi's claims. (Many reached the same conclusion when Kerry did not sue Corsi in 2004 regarding "Unfit For Command.") However, the real reason Kerry did not sue, and the reason Obama is not suing now, is doubtless related to American law - not any supposed accuracy of Corsi's scurrilous claims.

American Defamation Law Is a Mess: It Protects Liars and Discourages Public Persons from Suing

There is widespread misunderstanding about American defamation law - even among many attorneys - and for good reason: It is a mess. This body of law initially developed, state by state, from the common law of England. Then, in 1964, it was federalized with the U.S. Supreme Court's ruling in New York Times v. Sullivan. Now, the American law of defamation includes both the law of the 50 states (which varies from state to state) as well as federal law (which differs from one federal circuit to another).

This much is clear, however: Since Sullivan, it has grown increasingly difficult for public officials and public figures to protect themselves in court from remarkably and increasingly outrageous attacks

Obama's problems in dealing with the attacks of Corsi are exemplary and illustrate the problems facing a public person. (John McCain had similar problems in 2000 in South Carolina, when the Bush folks made false charges against him. McCain was smeared by the right; the left generally has eschewed this tactic.) There are good reasons why political candidates have largely given up seeking to hold those who defame them accountable: In the name of free speech, courts protect false speech. The current law is now openly hostile to political figures. And the process is extremely expensive and time-consuming, taking years to resolve.

The Basics of Modern American Defamation Law - and How It Has Gone Astray

The law of defamation in America is truly a body of law with infinite complexities. But allow me to simplify, using broad strokes to paint what is hopefully an accurate description of the gist of the way it all works, before turning directly to Obama's problems with Corsi's smears and false charges.

Sullivan held that for a public official to recover damages in a defamation action, he or she must prove that the publisher of the defamation acted with "actual malice." (Later, the Supreme Court extended the "actual malice" requirement to anyone who is a public figure, a category that now reaches more and more people) As is often the case in the law, the term used is misleading: "Actual malice" has nothing to do with "malice." As defined by the Supreme Court through a series of rulings, the phrase has come to mean that the publisher of the defamation either knew the statement being published was false or published it with reckless disregard as to its truth or falsity.

Needless to say, those who defame others - more precisely, those who are taken to court for doing so - claim that they believed their statement(s) were true, and thus did not "know" they were publishing defamatory material. Defendants also deny acting recklessly. To overcome these denials and establish "actual malice" on the part of the defendant, the public-person plaintiff must meet highly demanding standards of proof, which impose requirements that are nearly impossible to meet.

Coupled with the difficulty of proving "actual malice," there is a general hostility toward public persons filing defamation lawsuits. Probably correctly, judges believe that a healthy First Amendment requires open and vigorous debate about matters relating to public people and the public interest, so they are less than open-minded about lawsuits filed by such public people.

More specifically, notwithstanding Jerome Corsi's stack of conspicuous false statements about Barack Obama, I doubt that Obama could convince a judge that he has been defamed - unlike John Kerry, who was brutally defamed by Corsi in 2004. (Actually, I was certain Kerry would sue him, given the clear evidence of actual malice the book demonstrated, and amazed when Kerry did not. Had Kerry sued, the costly verdict or settlement might have put Corsi out of business.)

Corsi Does Not Appear To Have Technically "Defamed" Obama

I have not read Corsi's "Obama Nation." (I do not plan to do so until I can purchase a used edition, for I do not want any of my money going to Corsi, because I detest his kind of writing.) Corsi's false statements, however, have been culled by the Obama Campaign, which issued a forty-page analysis to refute fifty selected false statements in Corsi's book. The campaign has rightly titled the analysis "Unfit for Publication."

Presumably, this material focuses on the statements Obama's team find most offensive. Accordingly, I extracted these lies (and it is clear that they are, in fact, lies, given the clear and convincing information provided by the Obama Campaign) to see if they are statements that might successfully be addressed in a defamation action by Obama against Corsi. See Appendix - "Obama Campaign's Collection of Corsi's False Statements."

Remarkably, I doubt that any judge would find Corsi's dishonest, nasty and politically-damaging false statements - individually or collectively - to be defamatory.

Smearing Without Defaming: The Line the Corsi Book Walks

In California, where the libel law is typical of many states, libel (the written form of defamation) is defined as a false statement that exposes a person to hatred, contempt, ridicule, or disgrace, or that causes a person to be shunned or avoided, or which has a tendency to injure a person in their occupation. Whether a statement is defamatory is based on the reaction of an average person to the statement, and when a lawsuit is filed, it will be a judge who, as a matter of law, will initially determine if the statements are defamatory. A few examples of Corsi-crafted handiwork will make the point as to why Corsi's statements, though false likely could not be proven to be defamatory in court.

To begin, Corsi's false claims that Obama omitted from his autobiographical books the statements that his future wife, Michelle, accompanied him on his 1992 trip to Africa, that his father was an alcoholic and polygamist, that his sister Maya was born when he lived in Indonesia, and that his stepfather was Islamic - and similar such statements, do not begin to meet the criteria for libel. Nor does the false claim that Obama did not dedicate his book to his grandparents.

Similarly, Corsi's efforts to falsely connect Obama to Kenyan politics, to falsely claim his father was a communist, to associate Obama with the recently-convicted Chicago wheeler-dealer Antoin Rezko, and with former anti-war bomb-throwing zealot William Ayers, to falsely place Obama in the church of Reverend Wright when he was preaching against white America, and to incorrectly claim Obama marched in the Million Man March - none of these adds up to defamation. (In fact, the un-vetted Corsi has more blatantly defamed the GOP standard-bearer in his WorldNetDaily articles, by claiming that John McCain has ties to the mob and that his presidential campaign is supported by a group with al Qaeda ties.)

Corsi has employed another effective technique that falls short of defamation but nicely smears a person with a "Have you stopped beating your wife?" type of question. Corsi states (ignoring that these questions were, in fact, answered long ago): "Obama has yet to answer questions whether he ever dealt drugs, or if he stopped using marijuana and cocaine completely in college, or where his drug usage extended into his law school days or beyond. Did Obama ever use drugs in his days as a community organizer in Chicago, or when he was a state senator from Illinois? How about in the US Senate?" A question is not defamatory for it is not declarative, and thus, by definition, it is not a false statement.

Not even by taking all fifty of Corsi's false statement together, can defamation be established. Digby quoted Tim Rutten of the Los Angeles Times as effectively doing just that, when Rutten said, "You can pretty well sum the whole [book] up this way: The Democratic candidate is a deceitful jihadist drug addict who, if elected, plans to impose a black supremacist, socialist regime." If confronted with Rutten's reasonable summary of Corsi's book, a judge would no doubt claim that the Tim Rutten types are not average readers; that Rutten is merely creating a worst case interpretation that amounts to hyperbole; and that an average reader would understand all this is mere political dialogue, and standard campaign mud slinging. The judge might even point out that this attack has given the Obama Campaign the opportunity to put to rest such false charges - as they have done.

(Having not yet read the entire Corsi book, I cannot determine if Obama might have what is known as a "false light" cause of action because he has been so falsely portrayed. I do know that courts do not like false light lawsuits as replacements for weak defamation lawsuits, so I doubt it.)

In short, Corsi or his publisher, Simon & Schuster, must have carefully vetted this material to make it almost impossible for Obama to file a lawsuit. Corsi's work, based on the fifty false statements selected by the Obama campaign, exemplifies the non-defamatory political smear at its best.

The True Abomination of Corsi's Efforts

Unlike the Kerry Campaign, which had a solid defamation lawsuit against Corsi and did not even bother to rebut his prior work, the Obama Campaign's staff has done what it can by laying out the true facts. In doing so, they have also explained Corsi's own background without employing Corsi's tactics against him.

Indeed, Obama staffers have been kind in their characterizations of Corsi, for they merely describe him as a "bigot" - which is an understatement - as they point out, without labeling, the vicious, name-calling, and offensive statements of this clearly troubled fellow (view any video, e.g. here or here), who is so conspicuously "sexist, racist, and bigoted." Corsi is, as well, a person who has been charged by unverified sources - which are the kind Corsi himself likes - with horrific behavior and labeled a lunatic by others. In light of Corsi's own background and nature, the Obama team has taken the high road rather than stooping to Corsi's level to use against him some of his own tactics.

The world should give Corsi credit where it is due: This is the second big-time smear-hustle he has pulled off in a presidential election. As he is an authoritarian conservative (a type with which I am too familiar), you can be assured that he does not give a hoot what names he is called; that he is comfortable in the self-perceived rectitude of his conduct; and that he is only worried about getting to the bank with his advance and royalty checks, rather than about what anyone thinks of him.

The only real abomination in Corsi's work, in the end, is that John McCain has not denounced his "Obama Nation."

John W. Dean, a FindLaw columnist, is a former counsel to the president.