Legal experts agree that proving a defamation lawsuit is difficult. But when it involves public figures who knowingly subject themselves to public discourse, the burden of proof may be even greater.
David H. Donaldson, a First Amendment expert and attorney with the Austin, Texas-based law firm Graves, Dougherty, Hearon & Moody, said the political ad named in Gordon E. Maag's defamation lawsuit attacks the court's judgement, not the person.
"That kind of attack is fair because it goes directly at his job performance, as opposed to stating Judge Maag committed a crime, accepted a bribe or was unethical," Donaldson said. "That's right down the middle of what's fair."
Donaldson also stated that "opinions" are not actionable in defamation suits.
"The First Amendment recognizes the right to state opinions," Donaldson said. "It's very tough to prove someone consciously and deliberately lied about you."
On the question of damages, Donaldson stated that blaming one ad for the defeat of a sitting judge is not reasonable.
"Especially when the other candidate is out there campaigning and building name recognition for himself," Donaldson said. "Judge Maag's defeat is not necessarily the result of a negative ad. It can be attributed to the voters."
FAVORABLE VENUE FOR MAAG?
A source inside the Madison County Courthouse said based on the charges in Gordon Maag's $110 million defamation complaint, the suit would likely be thrown out of court if it were filed in any other venue besides the one which was recently ranked by the American Tort Reform Association as the nation's No. 1 "Judicial Hellhole."
Maag, whose campaign was funded largely by contributions from plaintiff's attorneys, has "some type of relation, good or bad, with every judge in Madison County," according to the source who asked not to be identified.
"Maag is looking for a friendly face in a case no judge should even consider," the source said.
Seeking a favorable venue, however, is incumbent upon a good lawyer, according to First Amendment attorney, Jon Katz of Marks & Katz in Silver Springs, Md.
"A good lawyer will try to find the most favorable jurisdiction (for the client)," he said.
But Katz, who states he is strongly opposed to all defamation and libel suits, said a public figure who claims to have been maligned must have strong evidence. Direct evidence could include the testimony of a witness or circumstantial evidence which proves that it was very easy to get the facts right.
"To prove malice you have to show (the defendant) knowingly, rather than recklessly and without knowledge, lied.
"The First Amendment is clear about robust protection of freedom of expression," said Katz. "I do not see any way the First Amendment can go uninjured if libel and defamation suits are allowed.
"Fortunately, the courts have set high hurdles."