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Rick Mullin

Mullin

DES MOINES | Television screens in Iowa in coming months will be filled with political advertisements.

In the wake of an Iowa Supreme Court ruling Friday that tossed out Sioux City Republican state Sen. Rick Bertrand's defamation lawsuit against his 2010 opponent, viewers can probably expect to see the same negative, so-called attack ads that some candidates have decried, political and legal experts said.

"What it will do and what you'll see is the continuation of negative advertising. It opens the door to that question of how close can we get to that line of something being factually correct without crossing the line?" Iowa University political science professor Tim Hagle said.

In a 5-0 ruling, the court found that a campaign ad run by Rick Mullin and the Iowa Democratic Party was not defamatory because Bertrand failed to prove his opponent maliciously and knowingly used material later learned to be false.

"The result of this case is not to imply actual malice cannot exist within the rough and tumble Wild West approach to negative commercials that have seemingly become standard discourse in many political campaigns," the court wrote. "Among public figures and officials, an added layer of toughness is expected, and a greater showing of culpability is required under our governing legal standards to make sure the freedom of political speech, even when it sounds like speech far removed from the dignity of the office being sought, is not suppressed or chilled."

The ad claimed that Bertrand "put profits ahead of children's health," a reference to Bertrand's former job as a regional manager for a pharmaceutical company that federal regulators had criticized for marketing a sleep drug to children. Bertrand did not work in the division that sold the drug.

Bertrand sued days before the election, which he ultimately won by 286 votes. A Woodbury County District Court jury in 2012 awarded Bertrand $231,000 in damages. District Judge Jeffrey Poulson later reduced the amount to $50,000.

Mullin appealed the verdict, and Bertrand appealed Poulson's reduction.

The Supreme Court said Mullin and the Democratic Party may have been negligent, but negligence does not rise to the point of defamation.

"What the court's really saying is that maybe the Democratic Party could have done more (research), but they did enough. They didn't know the part they trumped up was false," said Mark Kende, a Drake University law professor and director of the school's Constitutional Law Center.

Mullin said the ruling vindicated his campaign.

"It was extremely gratifying to see that the court has agreed with the basic constitutional principles that we brought," Mullin said. "Today is a great day for justice and freedom of speech."

Bertrand said the decision makes it OK for politicians to blatantly spread lies about their opponents without consequence.

"Americans and Iowans were waiting for the Supreme Court to clean up politics, and the Iowa Supreme Court failed to do so," said Bertrand, who is running for re-election this year. "What they've done is set the precedent that says anything goes."

Hagle said the ruling doesn't go that far.

"I don't think this decision basically gives people free rein to do or say anything they want," said Hagle, who also has a law degree. "We're not sure where that line is."

Kende said the decision falls in line with previous U.S. Supreme Court rulings, which have made it clear that politicians can expect a fair amount of criticism and questions about their backgrounds.

"It's definitely a little more evident that people are allowed to say things in political campaigns that aren't necessary the level of acceptable public discourse," Kende said.

Friday's ruling may give candidates the sense that they can ramp up the negative campaigning, he said.

"It does open the door a little bit to make some candidates more comfortable to say some things," Kende said. "It's probably not great for civility, but the price of living in a free-speech country is sometimes people are going to say things you don't like."

The decision shows a public figure such as Bertrand has to meet a high bar to prove defamation, said Ryan Koopmans, an attorney with Nyemaster Goode in Des Moines and author of the legal blog "On Brief," which covers appellate issues.

"The opinion demonstrates how difficult it is for politicians to prove that they were defamed by negative political ads. And that's probably how it should be," Koopmans wrote in an email. "The voters, not the courts, are best suited to judge political truth. Indeed, if political fact checkers have taught us anything, it's that political truth is often in the eye of the political beholder."

Bertrand's attorney, Jeana Goosmann, said in a statement posted on her Sioux City firm's website that she will consider an appeal to the U.S. Supreme Court. Bertrand said he would support an appeal.

"If there's another avenue to protect voters and clean up the political system, I'm all for it," he said. "The reason I did this was to change the face of politics. This has never been about me. This has always been about the process." 

Mike Wiser, of the Journal Des Moines Bureau, contributed to this report. 

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