Former Sen. James Abourezk (D-S.D.), an Arab-American who virtually coined the term “The Israel Lobby” in the 1970s, has been called everything from “jerk” to “Jew-baiter.” Just don’t call him “traitor.”
That’s the message of a lawsuit the one-time Senator now has pending before a judge in South Dakota. Abourezk is seeking $5 million in damages, plus a public apology, for having been “defamed” by the suggestion that he is guilty of treason against his country.
The defendant in this instance is Mike Marino, a 21-year-old from suburban Philadelphia who operates the Web site ProBush.com.
The site features a “Traitors List” that includes not only Abourezk but also such putative enemies of the state as Susan Sarandon (“Tribunal for you,” Marino writes), former President Jimmy Carter, a musician called Noodles and Dr. Patch Adams (the real one, not the character played by Robin Williams in the 1998 biopic).
Marino says he would have taken Abourezk off the list if he had “asked nicely” at the start.
“But to throw this lawsuit in my face — it’s just kind of intimidating,” Marino said in an interview. “I mean, when you were 21 did anyone have a lawsuit against you?”
Abourezk’s lawsuit against ProBush.com basically argues this: Marino charged the former Senator with being a traitor; treason is a felony; and someone cannot falsely accuse an individual of committing a crime.
Marino has claimed that the list is essentially a parody, rather than a legal judgment. The site avers, “If you do not support our President’s decisions you are a traitor,” which is a somewhat less exclusive definition than that used by the federal government or the courts.
The Traitors List includes the Dixie Chicks and former Rep. Gary Condit (D-Calif.). Marino says most of the names were taken from a petition circulated by the group Not In Our Name, which opposed the overthrow of Saddam Hussein in Iraq. The list now includes nearly 200 names.
Legal experts are in seemingly universal agreement that Abourezk’s case will not succeed. Law professor and First Amendment specialist Eugene Volokh, who has joined an amicus brief filed on Marino’s behalf, calls it “one of the 99 percent of all cases that will never be cited as precedent,” arguing that the case covers “settled law” on free speech.
Broadly speaking, politicians are among the last public figures protected from even the most baseless charges.
Abourezk, nevertheless, has cast himself as the champion of free speech in this matter.
“You can’t use the First Amendment to club someone else over the head so they can’t speak,” said Abourezk’s lawyer, Todd Epp, who likened the charge of “traitor” to that of “child molester” and other such criminal ilk.
Epp called the Traitors List on ProBush.com a “criminal demonization of people who don’t agree with the president.”
“Can you use free speech to keep someone else from speaking? That’s what this case boils down to,” he said.
Volokh expressed puzzlement at that explanation.
“I certainly hope that someone who used to be a Senator would not be chilled by people calling him names,” said Volokh, who teaches at the University of California at Los Angeles. “That people will call you names is, unfortunately, part of the political game.”
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.