Legal Claims for Bogeyman Fundraising?

Does the bogey(wo)man have a legal claim when her name is invoked in political fundraising?



Scott Brown recently released a fundraising letter that claimed Rachel Maddow was running against him. Maddow has gone on the air several times saying that it is untrue that she is even considering running and that the Senator will not accept her calls. Even more bizarrely, the Senator denies she is calling at all, and seems to be claiming that the DNC paid for the full-page Boston Globe ad that MSNBC printed on her behalf, not once bothering to check with Maddow. This level of willful ignorance can only be called intentional. What I'm interested in here, is whether there are, can be, or should be legal remedies to such a blatant, fraudulent misuse of political fundraising.
I have three ideas for potential remedies,  the last of which is the most intriguing, though to the best of my knowledge does not yet exist. First is defamation law - theoretically there is a price for lying about someone publicly. In Massachusetts, the elements of a defamation claim are:

1) a false and defamatory communication
2) of and concerning the plaintiff
3) published or shown to a third party.

Carmack v. National R.R. Passenger Corp, 486 F.Supp.2d 58 (D.Mass 2007).  A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence

And a defamatory communication is: "A false statement of fact, whether written or oral, that is communicated to a third-party and injures the subject's reputation."

So the difficulty in a defamation claim would be that of proving the injury to the reputation. Everything else there works in any similar situation (obviously assuming the target is the plaintiff). Aside from the belief that politicians are slimeballs, this accusation is unlikely to harm Maddow's reputation. Perhaps a slightly more plausible claim is that if someone thought she was using her news show as a platform for running, it would undermine her credibility and that of the show. That last may seem plausible, but is hard to prove, and the damages hard to measure. In general, a private remedy such as this is only as good a deterrent as the damages you can receive.

Ok, so onto the second idea, which Maddow actually suggested on her show the other night - intellectual property. There's a concept known as right of publicity - an ownership of one's own likeness. I'm not too well versed in IP law, but here's part of the MA statute:

Any person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent may bring a civil action in the superior court against the person so using his name, portrait or picture, to prevent and restrain the use thereof; and may recover damages for any injuries sustained by reason of such use.

The law provides for both injunctive and monetary relief. The point of the compensatory damages in IP law is to compensate for the loss of profit that came from stealing the likeness. Therefore, damages aren't really appropriate here because, while Brown raised money, it was not profit, it was for a political campaign, and it is not money Rachel Maddow could received by using her own likeness (if she ran, her likeness would bring in different money from different contributors). The point of injunctive relief in IP is to allow a content owner (here the content being the likeness) to control the publication of it at all, for any purpose. It is inherent in property rights that an owner should ahve the right to do nothing with her property.

Therefore, this second result could theoretically be used by MAddow to prevent her likeness's use. Because it's for a political campaign, however, she might run into First Amendment issues. Speech protections are not as strong in the commercial context, where IP law typically operates, as in the political, seen as "core" speech. Therefore, even here, the IP route might prove difficult.

Finally, the third option is one I don't believe exists, but could be very intriguing. There's a concept in securities law called "fraud on the market." The idea is that while a typical fraud claim requires reliance in order to be actionable (in other words - if you lie to me, and I don't base my action on it, I can't sue you), our entire securities system is built on the concept of the efficiency of the market, and since the market will immediately take fraudulent reports into account, reliance need not be proved - it can be assumed to have hurt every market participant.

I bring it up here because when discussing freedom of speech, the most used (and often abused) analogy is the "free market of ideas." The theories about combating speech with speech, with the best ideas rising to the top, is the theoretical model of political influence. And since the court has ruled that campain contributions are speech themselves, a lie such as Scott Brown's that distorts the free market of ideas in fundraising should be actionable, criminal in fact. It hurts all market participants (voters) immediately and equally. Maybe we should try to get a law like this passed.

There would of course be First Amendment concerns here too for the same reasons - commercial vs. political. But the First Amendment has no problem with the banning of damaging lies in general (defamation) so it might not be that big a hurdle. Also, it wouldn't really chill speech a whole lot, because the proof would be a fraud standard - a high burden of proof. To see a similar result, see how often companies massage their numbers without ever being charged with fraud on the market - it's more for the truly severe and blatant lies, and the line-drawing seems to work just fine.