The Sue Rule: anyone can sue anyone at any time, but…

It’s a rule. I learned it years ago from a lawyer I worked for.

The “but” is most significant. (Can also be spelled “butt.”)

As Darrell Issa learned when he sued an opponent for defamation. Here’s DailyKos Elections dish about it–which offers some additional info about why politicians (among other public figures) don’t regularly smack lawsuits on people who have actually defamed them. (Anti-SLAPP legislation–some states have it, some don’t–is fascinating. If you’re planning to write critically about a public figure, study up.)

Test: Can you think of any current elected official, say, a president who might lately have actually defamed any other formerly elected official, oh, say, a president, in, say, tweets? No? Nonsense: I know what you’re thinking.

Anyway:

CA-49: Butthurt politicians threaten their opponents with defamation lawsuits from time to time in the U.S., but few are dumb enough to actually follow through—except for the likes of Darrell Issa. The ultra-wealthy Republican congressman barely survived a challenge last year from Marine veteran Doug Applegate, who got under Issa’s skin with a TV ad arguing (quite accurately) that Issa had used his many years in office to make himself even richer.

Issa prepared a legal complaint about the ad during the peak of the 2016 campaign, but bizarrely, he waited to file it until the day before the election. He should have waited forever. Earlier this year, a state court judge dismissed the case, finding that Applegate had said nothing inaccurate, and he further ruled that Issa had violated a California law against lawsuits designed to intimidate the exercise of free speech (known as an “anti-SLAPP” law.)

That latter ruling allowed Applegate to recover his attorneys’ fees from Issa (something not usually awarded in American legal proceedings), and now the judge has ordered Issa to pay Applegate and his campaign $45,000. Given the very high bar that U.S. defamation law poses to plaintiffs—public figures like Issa must demonstrate that defendants acted with “actual malice”—it was absurd for Issa to pursue this claim in the first place. But now he’s also done his 2018 opponents a solid, too, because if they run ads substantially similar to Applegate’s old spot, there’s not a word Issa can say.

And indeed, that opponent could once again be Applegate, a newcomer who surprised the political world last year by pushing the previously invulnerable Issa to the brink. Soon after his narrow half-point loss, Applegate declared he’d seek a rematch, but Issa’s softness has also drawn a couple of other Democrats into the race, environmental attorney Mike Levin and real estate investor Paul Kerr. And not only did Issa show weakness, but the broader Republican brand took a hit in this suburb San Diego district in 2016, as California’s 49th District flipped from supporting Mitt Romney by a 52-46 margin to backing Hillary Clinton 51-43. That means it’ll be in play once again next year, albeit with a slightly poorer but definitely no wiser Issa still on the hot seat.

 

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