What crap!

Sen. John Kerry’s 2004 presidential hopes were sunk when he buckled under to “authoritarian” conservatives hellbent on smearing his military record as part of a larger “proto-facist” movement, says a former top White House aide whose testimony helped sink Richard Nixon during the Watergate scandal.

John Dean, a Republican who served as Nixon’s top counsel, said Kerry slipped up during the 2004 campaign against President Bush by not suing the Swift Boat Veterans for Truth when they published a book calling into question the Bay State senator’s Vietnam service.

“What most surprised me is that Kerry never did anything with the Swift boat attacks,” Dean said. “He waited so long, it was shocking. I thought he should have brought a defamation action against them and he would have succeeded.”

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Dean was in Boston this week promoting his new book, “Conservatives Without Conscience,” a harsh indictment of the current GOP power structure that paints Bush, Vice President Dick Cheney and other top party leaders as dangerous “authoritarians” who have ignored the ideology’s founding tenets.

“About 23 percent of the American people are authoritarian conservatives,” Dean said. “It’s proto-fascist behavior. While we’re not a fascist nation, we’re too close (for) comfort. I’m trying to warn people.”

more...

http://news.bostonherald.com/localPolitics/view.bg?articleid=149506

Scalia revealed that he felt the landmark1964 ruling in New York Times v. Sullivan was wrong. That decision held that when a plaintiff in a defamation lawsuit is a public figure, such as a government official, the plaintiff can only prevail if he or she can show the statement was made with "actual malice" - a problematic phrase.

The requirement of "actual malice" means that the person publishing the defamatory statement must have done so with one of two states of mind: Either he knew the statement was false, or he published it with reckless disregard to whether it was true or false.

Simple negligence, then, is not enough under New York Times v. Sullivan: "Reckless disregard" requires that there had to have been a compelling reason to prompt taking some care before making the statement.

In practice, the "actual malice" standard means that the plaintiff usually loses. It's virtually impossible to prove with clear and convincing evidence (as is also required when the standard applies) that the publisher of the false statement either knew it was false, or published it despite good reason to more fully investigate the matter, thus recklessly.

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The constitutional law of defamation is a disaster. It is nearly incomprehensible. It is unfair. It is unjust. And it is long overdue for a correction. Sadly, I could randomly select dozens upon dozens of cases to make the same point the Lohrenz case makes.

Scalia is correct: Everybody should be able to protect their reputations. But not until New York Times v. Sullivan -- which literally changed the law of the land overnight -- is reversed, will that ideal be a reality.

Hopefully, Justice Scalia was giving us a hint of coming changes at the Court, when defamation cases are heard. At a minimum, the Court ought to make clear that only true public figures are deemed public figures for defamation law - for current law only encourages the victimization of private persons. Better yet, the Court should chose a more realistic standard than "actual malice" - one under which even public figure plaintiffs who are lied about, can get justice.


http://writ.news.findlaw.com/dean/20051202.html