Last week some reporters, politicos, and bloggers may have mourned the end of the endless presidential primary season. But it's not like political mudslinging is now going to end. Indeed, in ancticipation of the focus on the general election battle, in the muddy backwaters of the Internet – in forums, blog comments, email chain letters and listservs – defamatory statements are being bandied about in hopes that some of the reputation damaging misinformation will enter the zeitgeist of the electorate to sway public opinion about the candidates one way or another.
The Los Angeles Times recently reported on the trend, noting that Snopes.com and PolitiFact.com have not only been tracking the smear campaigns against the presumptive nominees but also determining the veracity of the claims. Factcheck.org, a project of the Annenberg Public Policy Center of the University of Pennsylvania, similarly analyzes the veracity of statements made by parties or campaigns themselves. So as to not add to the clutter of misinformation on the web, I’ll let you find some of the best calumny that have been floated around the web yourself.
Jeff Jacoby of the Boston Globe in his article Drive-by Defamation suggests this kind of mudslinging has been going on since the founding. He writes that
[i]n 1796, historian Paul Boller records, John Adams was denounced by Thomas Jefferson's partisans as "an avowed friend of monarchy," who intended to make his sons "Lords of this country." Adams's Federalist followers called Jefferson a "Franco-maniac" favored by "cut-throats who walk in rags and sleep amidst filth and vermin.So what does a candidate do? Buying ad time on television will not likely reach those people active on the web. Filing a defamation lawsuit against the author will likely not be successful because the author is often not identifiable or anonymous. In addition, filing a lawsuit against the wesbsite operators that host the defamatory statements would be equally futile because even a newbie to section 230 of the Communications Decency Act (CDA 230) knows that website operators would not be held liable for posting the statements of their users. As our CMLP’s own CDA 230 primer indicates:
A website operator may take an active role in editing content, whether for accuracy or civility, and it will still be entitled to CDA 230 immunity so long as the edits do not substantially alter the meaning of the content.
So instead of litigating the matter, the Guardian recently ran an article that suggests the candidates are battling back against the deceptive online smear campaigns. The Obama camp has recruited senior staff to focus on the problem and already has a so-called "Fight the Smears" action center. McCain has his own online action center as well that includes a message of the day for bloggers and encourages them to post across 94 liberal blogs (see WIRED's article).
The war of the words has begun.
(Jason Crow is a second-year law student at Boston College Law School and a CMLP Legal Intern.)