In an escalation of a dispute between the Democratic and Republican parties over voter suppression, a Michigan G.O.P. official, with the backing of the Michigan Republican Party, has filed a defamation lawsuit against the Michigan Messenger blog. The suit arises from a September 10 story by the Messenger, titled "Lose Your House, Lose Your Vote", which quoted the official, James Carabelli, about Republican plans to challenge the voting rights of citizens whose homes were in foreclosure. That story drew national attention and became the basis of a lawsuit brought by several Michigan citizens, the Michigan and national Democratic parties, and the Obama campaign, seeking an injunction against the use of foreclosure lists to disenfranchise voters. (Motions in that earlier lawsuit, one by the Democrats to obtain a preliminary injunction and one by the Republicans to dismiss the lawsuit altogether, are scheduled for October 20.)
The new defamation lawsuit, which according to reports has nominally been brought only by Carabelli in his personal capacity, actually appears to have been brought in collaboration with the state Republican Party. When I spoke this afternoon with Carabelli's attorney, Matt Davis, he politely apologized for not being able to speak with me but said he had been instructed to direct all media inquiries to his "client" and gave me the contact information for Bill Nowling, communications director for the Michigan Republican Party. (My call to Mr. Nowling was not immediately returned.) Similarly, the TPM Muckraker describes Davis as evading the question of whether Carabelli himself, or the G.O.P., is paying his legal bills:
Matt Davis, the attorney for the plaintiff in the defamation suit filed against the Michigan Messenger was quite talkative about the particulars of the suit when TPMmuckraker called him this morning, but declined to say who was paying his legal fees.
"I don't comment on my clients," Davis said in answer to inquiries about who was employing him, but directed us to the spokesman for the Michigan Republican party for further questions.
Davis has represented Carabelli and the state party jointly in the past. On September 18, The American Lawyer's Rachel Breitman reported that Davis had issued a letter on behalf of both Carabelli and the Michigan Republican Party demanding a retraction and threatening to sue the Messenger if one was not received within a week. The Messenger declined to retract its story and continues to assert that its reporter accurately recounted her conversation with Carabelli.
The threat of a defamation lawsuit, if not the lawsuit itself, was a fairly predictable countermeasure from the political and public relations perspectives. As noted above, Davis demanded a retraction and threatened suit back on September 18. On Sept. 20, based on national G.O.P. spokesmen's harsh statements and predictions of an imminent retraction during a press conference call that morning, I predicted the possibility of such a lawsuit actually being filed to pressure the Messenger to recant its story:
Shorter RNC conference call: kill the Messenger. Watch for a possible defamation suit against the M.M. next week to help make the RNC's predictions of a retraction come true.
The threatened lawsuit did not materialize the following week, possibly because, on Monday, September 22, the House Judiciary Committee announced plans to hold a hearing on voter enfranchisement issues, including the "lose your house, lose your vote" story. A retaliatory defamation lawsuit against the Messenger probably would have received extensive unfavorable publicity in that hearing, which occurred on Sept. 24. However, now that an emergency financial bill has been signed into law, Congress has adjourned to allow members can engage in election activities.
The defamation lawsuit against the Messenger faces an uphill battle, because the Supreme Court has ruled in several cases that the press has First Amendment protection against such suits unless there is strong evidence of actual intent to inappropriately injure the plaintiff -- the so-called "absence of malice" rule. TPM Muckraker's report that the parties already are battling over whether or not the Messenger is truly a nonprofit organization or is a partisan one suggests that the Republicans may try to prove that the Messenger is not a legitimate media outlet worthy of First Amendment protection. The Republicans also may be hoping that threats to the Messenger's favorable tax status may pressure it to recant its story.
The escalation of combat over voters' rights and public opinion is predictable in some ways, as both parties increase their efforts to manipulate the turnouts of their own and each other's voters on Election Day. The new developments in Michigan, however, are somewhat surprising given yesterday's decisions by both the McCain campaign and the Republican National Committee to effectively concede the entire state to Democrats and refocus their resources elsewhere. In light of that development, the defamation suit against the Messenger may be an effort to counter negative publicity the "Lose Your House" story received in other states, especially nearby, battleground Ohio; a bargaining chip to pressure Democrats into agreeing to a mutual dismissal of both parties' lawsuits; or a simple mistake in communication and timing, the defamation suit having been filed just one day before the G.O.P.'s withdrawal from Michigan was announced.