Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Supreme Court refuses to review ruling that political ad was not defamatory, (Oct 14, 2014)

By Linda O’Brien, J.D., LL.M.

The U.S. Supreme Court will not review a decision by the Iowa Supreme Court that a television advertisement run by an opponent in an election campaign, which implied that a state senator marketed a sleep drug to children, was not defamatory. Today, the Court denied the state senator’s petition for certiorari, docketed on August 14, 2014 (Bertrand v. Mullin, Dkt. 14-190).

During a 2010 election campaign, opponent Rick Mullin aired a commercial stating that Iowa State Senator Rick Bertrand was a sales agent for a large drug company that marketed a sleep drug to children. Bertrand brought a state action against Mullin and the Iowa Democratic Party (IDP) for defamation. A jury found in favor of Bertrand, and the trial court determined there was sufficient evidence of actual malice.

Overturning the jury verdict, the Iowa Supreme Court held there was insufficient evidence to support a finding of actual malice. The evidence demonstrated that Mullin and the IDP lacked actual knowledge that Bertrand did not sell the drug at issue. Consequently, the state high court considered whether the implied statement was made with reckless disregard for its truth or falsity.

The state high court ruled that Mullin and the IDP did not create the commercial with reckless disregard for the truth or falsity of the implied statement because (1) the general background story regarding the drug was not false, and expressions of doubt are not evidence of actual malice; (2) a public forum where Bertrand denied selling the drug was not a suitable environment to alert Mullin of the ad’s error; and (3) actual malice cannot be demonstrated through ill will.

In the petition, the state senator contended that the Iowa Supreme Court applied an unreasonably high standard for defamation; the U.S. Supreme Court should clarify the standard as it relates to defamation by implication cases; the Iowa Supreme Court erred in finding a lack of sufficient evidence that respondents had actual knowledge that the commercial’s implication was false; and the Iowa Supreme Court erred in not finding reckless disregard of a false implication.

Attorneys: Jeana L. Goosmann and Emilee Boyle Gehling (Goosmann Law Firm, PLC) for Rick Bertrand. Mark McCormick (Belin McCormick) for Rick Mullin.

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