- Associated Press - Friday, May 16, 2014

IOWA CITY, Iowa (AP) - A state senator cannot sue for defamation over a rival’s campaign ad that falsely suggested he sold dangerous drugs to children, the Iowa Supreme Court ruled Friday in a case that could have implications for politics nationwide.

Sen. Rick Bertrand said the court’s decision to dismiss the lawsuit he filed against his 2010 opponent and the Iowa Democratic Party will embolden candidates to run false attack ads in Iowa. He said the court missed an opportunity to strike a blow against ads that destroy reputations and deter people from entering politics.

“I want to be crystal clear: the Iowa Supreme Court failed Iowans and failed America today,” Bertrand, a Republican from Sioux City, said. “What the court did today was to validate that facts and morals don’t matter in modern politics.”

Chief Justice Mark Cady wrote that the 5-0 ruling wasn’t meant to embolden the “rough and tumble Wild West approach to negative commercials” but rather to protect the free exchange of ideas and right to criticize public officials. Even the most “withering criticism of a political opponent’s past dealings or associations” is protected as long as it’s not false and made with actual malice, the high bar applied to defamation cases involving public officials, he wrote.

Political consultants for both parties said the ruling was a victory for free speech that would ensure voters, not judges, decide when candidates’ claims cross the line. They said the ruling would discourage candidates from filing lawsuits against opponents to try to score political points in the run-up to elections.

“It is a significant case nationally and it certainly does vindicate the importance of the First Amendment in these cases,” said attorney Mark McCormick, who represented Bertrand’s opponent, Rick Mullin, and the Iowa Democratic Party. “It establishes a standard that courts in other jurisdictions will pay attention to.”

The case dates to a tight 2010 election race between Bertrand and Mullin for a four-year senate term. After Bertrand ran an ad accusing Mullin of flip-flopping, Mullin’s aides pushed him to respond.

He eventually approved an ad that accused Bertrand of putting “his profits ahead of children’s health.” Bertrand worked from 1999 to 2009 as a salesman for Takeda Pharmaceuticals. The Food and Drug Administration had criticized Takeda for marketing a sleep drug to children. Bertrand worked in a different Takeda division and never sold that drug. Nonetheless, the ad claimed that “Bertrand’s company” sold “a dangerous sleep drug to children.”

Bertrand called the ad false and asked Mullin to pull it. He filed the lawsuit days before the election, which Bertrand won by 222 votes.

A jury in 2012 agreed with Bertrand that the ad falsely suggested he personally sold the drug, and ordered Mullin to pay $31,000 and the Iowa Democratic Party to pay $200,000. A judge later reduced the verdict to $50,000. Both sides appealed.

Cady wrote that Mullin and the Democratic Party didn’t act with “actual malice,” the knowledge that the statements were false or made with a reckless disregard for the truth. The evidence showed Mullin and his aides didn’t know if Bertrand himself had marketed the sleep drug before they approved the ad, so the false implication wasn’t made knowingly, he concluded, adding the ad made a legitimate implication that Bertrand “had associated with an unethical business.”

Mullin said he was grateful for the dismissal, but that the lawsuit had already succeeded in other ways. He said he believed the lawsuit helped Bertrand win in 2010. Mullin said the case was hard on him and his family, and led to his decision to not challenge Bertrand this November.



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