Bertrand defamation case changes nothing

Transparency makes attack ads palatable

In September 1895, Woodrow Wilson was more than two decades away from his move into the White House and spent a great deal of time studying government via the lens of history.

It was at this time, well before history and political science were distinct disciplines, the scholarly Wilson wrote a magazine essay establishing his thoughts on how historians should present their work, summarizing why it is often difficult to see into the past as well as into the future.

“The truth of history is a very complex and very occult matter. It consists of things which are invisible as well of things which are visible. It is full of secret motives, and of a chance interplay of trivial and yet determining circumstances; it is shot through with transient passions, and broken athwart here and there by what seem cruel accidents; it cannot all be reduced to statistics or newspaper items or official recorded statements. …

“The attention both of the narrator and of the reader, if history is to be seen aright, must look forward, not backward.”

As I set out this week to finally make good on a self-promise to research and write on the importance of the Iowa Supreme Court decision in the Rick Bertrand defamation suit, I kept circling back to Wilson’s words. After rereading the full essay and typing out the excerpt above, I finally have gathered the courage to admit what’s true: this particular decision doesn’t matter now and won’t matter in the future.


The courtroom for the Iowa Supreme Court at the Iowa Judicial Building in Des Moines.
The courtroom for the Iowa Supreme Court at the Iowa Judicial Building in Des Moines. (Stephen Mally/The Gazette)

The case began during the 2010 elections when the Iowa Democratic Party received the blessing of their Iowa Senate candidate, Rick Mullin, to run an attack ad against Republican candidate Bertrand. The ad tied Bertrand to his decadelong employer, a Japanese pharmaceutical company that had been criticized by the U.S. Food and Drug Administration for marketing a sleep aid to children and also labeled by an Australian consumer advocacy group as “the most unethical company in the world.” Although an employee of the company, Bertrand worked in the division that produced and marketed a diabetes drug, which had also come under FDA scrutiny, and said he never personally sold the sleep aid.

The IDP ad followed an ad by the Bertram campaign, which the Democratic candidate found offensive and internal polling was showing to be effective. According to the case file, Mullin’s campaign manager summed it up as, “Bertrand hit you hard. Hit him back harder.”

Bertrand publicly called out the IDP ad as false during a debate in late October 2010 and demanded it be pulled. The next day Bertrand filed suit, seeking injunctive relief and monetary damages based on defamation. The commercial continued to air until two days before the Nov. 2 election.

Bertrand won the seat by 222 votes, and the lawsuit marched forward.

After tossing out the request for punitive damages along with eight of 10 statements Bertrand had highlighted as defamation, the court gave two statements to a jury for consideration. The verdict was in Bertrand’s favor — $31,000 against Mullin and $200,000 against the IDP. A judge later knocked the verdict to $50,000 in advance of the high court’s ruling, which dismissed the entire affair.


What the public learned from the Bertrand suit is the political status quo circus remains safely in place — a revelation to no one within the legal and political consulting communities.

When people, even when acting as jurors, are asked to decide if negative political ads have gone too far, they believe they are. Political strategists say such ads would not be running if they didn’t prove to be effective, despite scholarly research to the contrary. When the legal system decides, few meet the legal standard of defamation.

Chief Justice Mark Cady noted neither Mullin nor the IDP acted with “actual malice” — knowledge the statements were false or made with a reckless disregard for the truth. Evidence showed those responsible for the ad did not know if Bertrand had marketed the sleep aid. There was a legitimate implication, wrote Cady, that Bertrand “had associated with an unethical business.”

The debate tactic of attacking the man is commonplace in political advertising and generally protected speech as part of a 1964 U.S. Supreme Court ruling. The Court held that the First Amendment protects the publication of all statements — even those later proven false — about the conduct of public officials unless they’re made with actual malice. So in all cases of libel or defamation involving publicly elected officials, there is a higher standard of proof.


As the Iowa ruling and presentations before the Iowa Justices attest, even those who sit on the high court aren’t living life in a bubble, free of negative attack ads.

Justice Thomas Waterman asked, “Will it encourage people to be more careful in their campaign ads and result in more honesty and less use of false advertising?”

Cady, on the other hand, pondered if the ruling would stifle political opinion and if, given the state of political advertising throughout the country, voters were accustomed to negative political ploys.

“Modern political campaigns exist within news cycles that often require overnight action, especially as the campaign closes in on the day of the election,” Cade wrote. “This backdrop supports the need for ‘breathing room’ recognized by the First Amendment to permit meaningful political speech to survive.”

As a connoisseur of political free speech, I’m loathe to disagree. After all, when I write, as I did in last Sunday’s column, that U.S. Rep. Steve King suffers diarrhea of the mouth, it’s nice to know I likely won’t be hauled off to court. It’s likewise good for the citizens on the northwest side of Cedar Rapids to know their assertions that Mayor Ron Corbett is owned by certain business interests is protected political opinion.

The scarlet thread of truth throughout all of these examples, including the Bertrand suit, is publicly indispensable transparency.

We know when the IDP or the Republican National Committee runs a negative ad who is crafting and who is funding. It is too bad our courts and government haven’t seen fit for the public to have that level of transparency for all political advertising.

This column by Lynda Waddington originally published in The Gazette on Aug. 3, 2014. Photo credit: Stephen Mally/The Gazette