Iowa High Court Throws Out Defamation Case From False Democratic TV Ad

Iowa case law summary by Attorney Richard Clem: Defamation, actual malice.

Rick Bertrand v. Rick Mullin and The Iowa Democratic Party. IA defamation, actual malice

Rick Bertrand, a Republican, and Rick Mullin, a Democrat, were running for Iowa State Senate in the 2010 general election from Sioux City, Woodbury County. Bertrand owned a number businesses in Sioux City. He had also worked from 1999-2009 as a salesperson and district manager for Takeda Pharmaceuticals. He worked for a division that produced a diabetes drug. Another division of Takeda sold a prescription sleep tablet. Bertrand never sold this sleep aid. After Bertrand ran a campaign ad detailing policy positions Mullin had taken as Woodbury County Democratic Chair, Mullin's campaign manager told him: "Bertrand hit you hard. Hit him back harder." The Democrat's campaign began digging for dirt, and they found some in the form of Takeda's sleep drug, the one that Mullin never sold. They found that 388 patients taking the drug had been hospitalized for heart failure. They found allegations that Takeda had been marketing the sleeping pills to children. And from the pages of an Australian newspaper, they found the delightful prose that Takeda was "the most untethical drug company in the world."

They put together a TV ad that said Bertrand "put his profits ahead of children's health" and that he was a sales agent for "a big drug company that was rated the most unethical company in the world." It also noted that Bertrand's company was singled out by the FDA for marketing a dangerous sleep drug to children.

Despite the ad, Bertrand went on to win the election by a narrow margin of 222 votes.

Bertrand filed a defamation lawsuit in Woodbury County District Court prior to the election. He initially sought both an injunction and damages, and the case went to trial on the issue of damages. The jury agreed that the statements were defamatory, and awarded Bertrand a total of $231,000: $31,00 against Mullin, and $200,000 against the state Democratic Party. The defendants made a motion for the trial judge, Jeffrey L. Poulson, to throw out the verdict. This motion was denied in part. The court held that it was unreasonable to conclude that Bertrand actually owned Takeda, or that it was "his company." However, it held that the evidence supported the interpretation of the ad that Bertrand had personally sold the sleep drug. Judge Poulson reasoned, "if someone states that John is a car salesman at A&B car dealership and that A&B sells Fords, it is reasonable to infer that John sells Fords." (Judge Poulson had been appointed to the bench in 2010 by outgoing Democratic Governor Chet Culver.)

The trial court also concluded that there was sufficient evidence of actual malice. Bertrand had denied selling the drug and even filed the lawsuit the next day. This was sufficient, in the opinion of Judge Poulson, to establish actual malice, which is necessary in a defamation case against a public figure. He did, however, reduce the amount of the verdict.

Dissatisfied with this turn of events, the defendants appealed to the Iowa Supreme Court, which considered the case in light of U.S. Supreme Court decisions such as New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The Iowa high court concluded that the plaintiff had failed to establish actual malice by clear and convincing evidence. Accordingly, the Supreme Court reversed the judgment.

The court noted that "actual malice" means that the defendant must know of the statement's falsity or act with reckless disregard of the truth. Failure to investigate, or reliance on a single source, does not establish malice. Even gross irresponsibity about the truth or failure to follow journalistic standards is not enough.

The high court acknowledged that Mullin and the party failed to look into the matter any further to uncover the complete story after they seized upon the juicy quotes they wanted for their attack ad. But this ignorance of the truth was not enough. The court noted that the "general background story" from which the false implications were granted had a little bit of truth to it. It was not a "totally fabricated story." There was some evidence that tended to show that some party staffers actually believed the false statements.

The court did warn future politicians that the First Amendment does not allow a defendant to purposely avoid discovering the truth. The court was also sympathetic to the realities within the "rough and tumble Wild West approach to negative commercials" that is now standard in many political campaigns. But in this case, the false statements did not cross the line of actual malice. For that reason, the Supreme Court reversed the jury's verdict and ordered the case thrown out.

The Supreme Court's opinion was authored by Chief Justice Mark Cady, who was appointed to the Court in 1998 by Republican Governor Terry Branstad.

No. 12-0649 (Iowa May 16, 2014).

Please see the original opinion for the court's exact language.


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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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