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Iowa court: You can’t sue over political attack ads

IOWA CITY, Iowa — A state senator cannot sue for defamation over a rival’s campaign ad that falsely suggested he sold dangerous drugs to children, the Iowa Supreme Court ruled Friday in a case that could have implications for politics nationwide.

Sen. Rick Bertrand said the court’s decision to dismiss the lawsuit he filed against his 2010 opponent and the Iowa Democratic Party will embolden candidates to run false attack ads in Iowa. He said the court missed an opportunity to strike a blow against ads that destroy reputations and deter people from entering politics.

“I want to be crystal clear: The Iowa Supreme Court failed Iowans and failed America today,” said Bertrand, a Republican from Sioux City. “What the court did today was to validate that facts and morals don’t matter in modern politics.”

Chief Justice Mark Cady wrote that the 5-0 ruling wasn’t meant to embolden the “rough and tumble Wild West approach to negative commercials” but rather to protect the free exchange of ideas and right to criticize public officials. Even the most “withering criticism of a political opponent’s past dealings or associations” is protected as long as it’s not false and made with actual malice, the high bar applied to defamation cases involving public officials, he wrote.

Political consultants for both parties said the ruling was a victory for free speech that would ensure voters, not judges, decide when candidates’ claims cross the line. They said the ruling would discourage candidates from filing lawsuits against opponents to try to score political points in the run-up to elections.

“It is a significant case nationally and it certainly does vindicate the importance of the First Amendment in these cases,” said attorney Mark McCormick, who represented Bertrand’s opponent, Rick Mullin, and the Iowa Democratic Party. “It establishes a standard that courts in other jurisdictions will pay attention to.”

The case dates to a tight 2010 election race between Bertrand and Mullin for a four-year senate term. After Bertrand ran an ad accusing Mullin of flip-flopping, Mullin’s aides pushed him to respond.

He eventually approved an ad that accused Bertrand of putting “his profits ahead of children’s health.” Bertrand worked from 1999 to 2009 as a salesman for Takeda Pharmaceuticals. The Food and Drug Administration had criticized Takeda for marketing a sleep drug to children. Bertrand worked in a different Takeda division and never sold that drug. Nonetheless, the ad claimed that “Bertrand’s company” sold “a dangerous sleep drug to children.”

Bertrand called the ad false and asked Mullin to pull it. He filed the lawsuit days before the election, which Bertrand won by 222 votes.

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