Would it be libelous if I’d written: David Namanny in his editorial sticks a pitchfork in the backs of the Mitchell County Board of Supervisors!

HERE IS WHAT IS REPORTED TO HAVE HAPPENED

The Des Moines Register reported that the Mitchell County Board of Supervisors has asked its County Attorney Mark Walk to research a claim for defamation against the Osage newspaper, the Press-News and its editor, David Namanny. I tried to locate the actual editorial but was unable to find it online. I’m left with the story by CBS-2 New and the story, Mitchell County considers suit against newspaper, August 17, 2010. It may have all started when the Press-News published an editorial that said: "Looks like it's time to get out the pitchforks and head over to the county courthouse".

Yawn……. That’s not exactly a statement of fact; or a threat against any one individual or for that matter a falsehood. It sounds more like an opinion or hyperbole. Hyperbole is a figure of speech in which exceptional exaggeration is deliberately used for emphasis rather than deception.

No way Lombardi! Yes, way. He actually said that and said it in print. Shocking! Isn’t it?

Okay folks let’s get a grip. This is nothing to start a war over.

Even though I'm sure he'd bill you for the work, you shouldn't waste taxpayers' money to do legal research about something you should already know. Let us analyze the little we know. What’s the false part of that statement? What fact in that statement is false or in any way misleading? Do you not know that public officials are fair game even for some statements that later prove false? Do the government officials in Mitchell County not understand the basic law of libel? Let’s look first at Schlegel because you might want to check the bottom line of how much we took home.

See SCHLEGEL II v. OTTUMWA COURIER DIVISION OF LEE ENTERPRISES INCORPORATED , October 21, 1998, Docket Nos. 96-1040 - The Schlegels also successfully introduced financial records of the Courier's owner, Lee Enterprises.

The jury awarded Richard a total of $230,000 in compensatory damages broken down as follows:  impairment of reputation ($30,000), personal humiliation ($100,000), past mental anguish and suffering ($70,000), and future mental anguish and suffering ($30,000).   The jury also awarded Jeri $150,000 compensatory damages for loss of consortium.

In addition, the jury found that the Courier's actions amounted to “willful and wanton disregard for the rights of another” and assessed punitive damages in the amount of $2,000,000.   However, the jury concluded that the Courier's actions were not specifically directed at Richard.   See Iowa Code § 668A.1 (providing that if defendant's conduct is not specifically directed at the plaintiff, seventy-five percent of the award is to be paid to the state).

Post Trial Rulings: Zipped, zippo, nadda, see ya, I hope you didn’t get a parking ticket while parked outside the courthouse.

Here is a free legal opinion thanks to the Student Press Law Center:

New York Times Company v. Sullivan, 376 U.S. 254 (1964). In order for a public official or a public figure to prove defamation, they must prove actual malice. Actual malice requires that the person suing prove that the challenged statement was published by those who either knew it was false or were reckless in verifying its accuracy.

Who is a Public Official? The Supreme Court has said that a public official is one who, at the very least, has or appears to the public to have, a substantial responsibility for or control over governmental affairs. That would include the Mitchell County officials.

Here check out “The Basics of Libel and Libel Law” by Tony Rogers,

But public officials – people who work in government at the local, state or federal level – have a tougher time winning libel lawsuits than private individuals.

Public officials must not only prove that an article was libelous and that it was published; they must also prove it was published with something called “actual malice.”

Actual malice means that:

The story was published with the knowledge that it was false.

The story was published with reckless disregard of whether or not it was false.

So in my humble legal opinion you’ve got a few problems not to mention a problem with proving who the person is that was allegedly libeled?

Since the County board of Supervisors are public officials you’ll have to prove actual malice. Which, by the way, you are never going to prove; not in a million years.

But here is the rub: What did he say that was a false statement of fact? What is the fact? Truthfully I don‘t get your point in ordering the CA to research a possible cause of action. Was it what he said or that he challenged your authority by pointing out something to the taxpayers that you just don't like being pointed out? Is it simply because the county officials don’t like what was said in the newspaper? If someone is trying to retaliate against the newspaper then the Board of Supervisors may be accused of practicing censorship by discouraging participation in government. Censorship as you well know is practiced in places like Russia, China, Iran and other communist countries like Cuba and Venezuela.  That’s not supposed to be part of what they do in Mitchell County, Iowa. John Mitchel the Irish patriot or John Mitchell the early surveyor would not be proud.

WHAT IS A SLAPPs?

These suits are known as "SLAPPs," or "Strategic Lawsuits Against Public Participation." For those hungry to hold onto power by muting criticism the Courts don’t look kindly on those using the court system to do so. Using the court system for an improper purpose is an abuse of process. And that is the next rung up on the ladder of libel litigation.

Here is how it unfolds. The guy getting sued asks the question: Could this be an attempt to intimidate me for criticizing the county government? Is this a SLAPPs suit? They usually ask that question because of the First Amendment of the United States Constitution giving them a right of free speech. If we are truly free to speak, then we shouldn’t be getting sued for speaking the truth. That should be true even for speach that includes opinions and attempts to be humorous. Which I suspect the editor in this case was trying to do.

The SLAPPs defense is nothing new; in fact there are organizations for the protection of the public’s right to participate in public policy debate. These groups focus on SLAPP’s which is formally known as Strategic Lawsuits Against Public Participation. Here is what one such group writes:

The United States and California constitutions grant every person the right to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances. Yet, individuals and community groups are often sued for exercising these constitutional rights.

See the First Amendment Project that even provides a section for journalists sued by those using SLAPPs. Here is what FAP says about SLAPPs being used against journalists:

“A free press informs the people and serves as their mouthpiece; its value to our democracy cannot be overstated. Nevertheless, press freedoms are routinely challenged both by the denial by government of access to public records and proceedings and the placement of restrictions on what may be published. Unfortunately, individual journalists and the general public are often unaware of their rights and without resources to turn back these challenges. Thus, the ideal of the free press is too often unfulfilled.”

WHAT’S THE ANSWER FOR MITCHELL COUNTY?

Your answers aren’t in suing Mr. Namanny, but in combining services with other counties.

Perhaps there is a reason why our governments are in debt as much as they are and devoid of any workable solutions. Our elected officials aren’t listening to the citizens about less government, not more. With county governments the numbers just don’t add up.

There are 3,140 counties in the United State and Iowa has 99 counties. The population in Iowa is just over 3 million people of which Mitchell County has 10,781. Mitchell County covers only 468 square miles of the state’s 55,869 square miles. With only 23 people per square mile it’s less than half of the state average. Iowa has the ninth largest number of counties of all states in the U.S. Only Texas (254), Georgia (159), Virginia (134), Kentucky (120), Missouri (115), Kansas (105), Illinois (102) and North Carolina (100) have more counties. Iowa averages only 31,000 residents per county. In Rhode Island, where I grew up we had only 5 counties but averaged 211,000 residents in each county. Only Kansas (27,000), Montana (17,000), South Dakota (12,000) and North Dakota (12,000) have lower county average population counts.  Mitchell County has only 10,874 residents. It covers 469 square miles in area in northeastern Iowa. That’s 23 people per square mile.

The U.S. Census Bureau shows facts indicating this county is probably struggling financially. 

So get a grip because your answer isn’t with putting a target on the back of the local newspaper editor. As lawyers are fond of saying, don’t shoot the messenger. In this case a libel suit won’t solve Mitchell County’s problems. Cooler heads should prevail. You’d do yourselves a favor by calling off the legal dog and listening to what the editor is trying to tell you. So save your money because I’ve already done your research and that lawsuit isn’t going to help your situation.

Instead of wasting the taxpayer’s money on bullying the local newspaper why not spend it coming up with ways to coordinate the purchase of services and supplies with the other 98 counties in Iowa. That way everyone wins. 

SOLVING MITCHELL COUNTY’S FINANCIAL PROBLEMS

According to the Mitchell County official website it was organized in 1854. Originally Mitchell County was a part of Fayette County. Those 10,874 residents are paying to support 21 departments. If you need to save money consider merging with contiguous counties. The employee list shows 31 department heads.  That doesn’t include the Board of Supervisors.

I wonder if Abe Lincoln started out this way. I need a new job.