Members’ Libel Defense Grows

Posted April 6, 2005 at 6:47pm

Thanks to a federal judge’s ruling last week, Members of Congress now enjoy broader protection than ever from defamation suits, whether they are talking with journalists about their personal lives or their political views.

U.S. District Judge Richard Leon’s dismissal of a 2003 defamation complaint by the Council on American-Islamic Relations against then-Rep. Cass Ballenger (R-N.C.) was not the first dismissal of a defamation suit against a lawmaker.

But unlike previous cases, Ballenger’s controversial remarks — made to a home-state newspaper — weren’t offered in the context of pending legislation. Rather, Ballenger’s comments focused on the demise of his 50-year marriage, which he blamed on the proximity of his Capitol Hill home to CAIR’s headquarters.

By shielding lawmakers from defamation suits on comments about their personal lives, legal experts say, Leon has decisively expanded the sphere of protection offered to lawmakers in slander and libel cases.

“It construes the District of Columbia’s ‘scope of employment’ law broadly and breaks new ground in suggesting the ‘preservation of effectiveness’ is within the ‘scope of employment’ under District of Columbia law,” said Jeffrey Axelrad, an adjunct professor of law at George Washington University who served as director of the Justice Department’s Torts Branch from 1977 until 2003.

Plainly speaking, that means lawmakers are essentially immune from defamation suits — at least within the District of Columbia, as Ballenger was when he made his comments — whether they are discussing legislation or their marital status.

“For better or worse, we live in a society in which the public expects to hear from members of Congress on a variety of topics that go beyond legislative business, including when questions are raised about their family lives or other ostensibly ‘personal’ matters,” Leon explained in his 14-page decision. “While some Members choose to ignore such questions, most routinely and appropriately respond, either because they want to maintain the confidence of their constituents or they fear being viewed as not forthcoming.”

In Ballenger’s case, he was responding to a reporter’s questions about his marital separation when he referred to CAIR as a “fundraising arm” for the terrorist organization Hezbollah — a statement that the group asserts is both false and damaging to the group’s reputation.

Ballenger, who retired at the end of 2004, told The Charlotte Observer that the situation caused significant stress and “bugged the hell” out of his wife.

But the judge rejected CAIR’s argument that the remarks were not part of his official duties because he never proposed legislation concerning marriage or discussed his marriage with his fellow lawmakers.

The courts, Leon argued, have “long since rejected the notion that ‘official’ equals ‘only legislative,’” and as previous court rulings have suggested, the distinction between work and life in Congress is “not so clear.”

Rather, “activities that might have a personal flavor to them can often be, as they are here, ‘official’ in nature,” Leon said, noting that, for example, lawmakers are required to disclose publicly each year details about their “personal finances.”

Axelrad, who is one of the few experts in this highly specialized area of the law, said Leon’s decision could “provide comfort to Representatives who might otherwise be concerned about tort claims in the fringe areas.”

Previous cases involving Members sued for defamation have usually related in some manner to the legislative process.

For instance, Operation Rescue National sued Sen. Edward Kennedy (D-Mass.) in a Massachusetts state court in 1994 claiming that it had been defamed by Kennedy’s statement to the press in which he explained his support for a bill later enacted as the Freedom of Access to Clinic Entrances Act of 1994.

At issue was Kennedy’s remark that groups like Operation Rescue had “as a matter of national policy firebombing and even murder.”

But under the Federal Tort Claims Act, the U.S. Attorney’s office certified that Kennedy was “acting within the scope of his employment as an officer and employee of the United States at the time of the conduct alleged in the complaint” and was therefore immune from legal action. The suit was dismissed.

In an unrelated but similar case, a political consulting firm sued then-Rep. Jack Brooks (D-Texas) over comments he had made at 1987 press conference about federal funding of a project to restore a battleship.

But a circuit court judge, affirming a lower court’s conclusion, ruled in 1995 that Brooks’ remarks “were made in the context of an interview addressing Congress’ appropriation of money including [the plaintiff’s] lobbying fees for the restoration of the Battleship Texas [and] clearly fell within the course and scope of his position as a Member of Congress. This is especially true in the case of Congressman Brooks who was Chairman of the House Appropriations Committee at the time of the alleged defamation incident.”

Axelrad, who was involved in the Justice Department’s defense of Brooks, noted that the Ballenger case is quite different.

“Rep. Brooks was speaking on a matter related to appropriations, which is a little bit different from speaking about the circumstance of your divorce,” Axelrad explained. “It’s the latter that makes the issue interesting and subject to the debate.”