Which of these communications is defamatory?

(1) A statement that a city councilman's administration of City affairs is "mutinous" and that the City does not have a manager who "efficiently and honestly" runs the City; or

(2) A newspaper report that states that someone in the city planning commission (whose name is implied in the report) "is being bought";

(3) A bulletin which states that, during labor negotiations a party deliberately "delayed payment of wages to employees" for the sole purpose of furthering his political ambitions;

(4) In a heated public controversy, one party charges another (falsely) with "blackmail."

If you answered that none of these constitutes defamation, you are correct. In fact, each of these examples is taken from recent cases in which the courts have addressed the issue of free speech in the context of the political arena. In such a setting (public elections, city meetings, public debates, etc.), courts have routinely found that statements of opinion, no matter how outrageous or serious, are protected as free speech. In each of the examples above, the courts found these statements to be opinion and therefore not grounds for a defamation action. The courts have held that false statements of fact, however, are actionable.

Courts concede that the distinction between opinion and fact is a difficult one to make. For example, if one party charges another with "gross incompetence," that statement would probably be one of opinion (at least one case has so held). However, if together with that "opinion" are included false charges of specific crimes, the statement may be fact.

If, then, a communication made in the political setting is labeled as fact, what makes it defamation? In California, defamation is defined as a false and unprivileged publication or communication about another, which causes damage. Defamation is either written (called libel) or verbal (slander).

Libel is the false, unprivileged publication in a "writing, printing, picture, . . . or other fixed representation to the eye" (newspaper, magazine, pamphlet, etc.). Libel exists if the publication exposes a person to "hatred, contempt, ridicule" or "causes him to be shunned or avoided," or injures him "in his occupation."

Slander is an oral publication (which includes radio or "other mechanical means") which charges a person with crime, states that a person has an infectious or contagious disease, or injures a person with respect to his or her "office, profession, trade or business."

Let's return to statements made in the political setting. With the barrage of negative assaults by candidates for public office (the recent November elections seemed no different), when does a campaign, an advertisement, or a political statement go too far? When can a candidate sue her opponent for defamation, or some other party who has uttered false statements about her?

The answer lies in part in the legal difference between a "public figure" and a "private citizen." The courts have defined "public figures" as persons who:

(1) "occupy positions of such persuasive power and influence that they are deemed public figures, for all purposes" (for example, President Clinton, the First Lady, or basketball great Michael Jordan); or

(2) are injected into the public spotlight, and for a limited time retains public figure status (Monica Lewinsky, or perhaps the parents of JonBenet Ramsey, who were thrust into the spotlight when they became potential suspects in the murder of their daughter).

A "private citizen" is anyone who does not fall into either of these two categories.

Candidates for public office, and public officers themselves, are considered public - not private - figures. To prove defamation, then, a political officer or candidate must show not only that the communication in the political arena was one of fact and not just opinion, but also that the false statement was made with "actual malice." Actual malice means that the communication was made with knowledge of the fact that the statement is untrue. A private citizen, on the other hand, need only show that a false communication was made, with or without malice. A statement made during a public debate about a city treasurer, for example, that he is stealing money from the city might be one of opinion, whereas the same statement made about a private citizen as a bank teller would more likely be considered one of fact. Even if the city treasurer could prove the statement was one of fact, he would still have to show the statement was made with malice.

Thus, the requirement of showing fact, not merely opinion, and of proving malice, makes it more difficult for a public figure in the political setting to prove defamation. Take this example: Reporter A obtains information that B, a private citizen, is stealing money from his employer, and A publishes or utters it publicly. If the statement is in fact false, and if B is injured by the publication of such a fact, A is liable to B. If B is a public figure, however, B would have the additional burden of proving that A communicated the report while knowing it was false.

Why distinguish between public and private citizens? Primarily for two reasons: (1) the public figure is generally more able to reach the audience to which false information may have been disseminated, and "counter" any such information (public figures generally have greater accessibility to the media than a private citizen), and (2) our concept of free speech demands that issues of public attention - and therefore public figures who are part of that attention - be subject to greater scrutiny than private citizens. This second point holds especially true for public officials and candidates for office. And during a political campaign, as one court has stated, "short of accusations of crime or personal dishonesty, the First Amendment protects even sharp attacks on the character, motives, or moral qualifications" of a public official.

For those who feel political "mudslinging" has gone too far, not all hope is lost. The California legislature has enacted statutes which hold a candidate for public office liable for any slander or libel committed by a committee controlled by that candidate, if the candidate "willfully and knowingly" directs or permits the false statement. This will prevent candidates from shielding themselves from liability for false statements by merely "passing the torch" to their committees. In a similar vein, in 1992, the California legislature created a new chapter in the Elections Code entitled Fair Campaign Practices. It directs, in part, that a candidate "shall not use or permit the use of character defamation, whispering campaigns, libel, slander, or scurrilous attacks on any candidate or his personal life or family." The candidate is not required to subscribe to this law - it is merely voluntary. Will our politicians embrace this?