Wednesday, February 20, 2008, 7:45 AM

COA Speaks to Political Speech Protections

As the '08 political season ramps up, the NC COA reminded us yesterday, in Craven v. Cope, that unkind political mailings that are hyperbole or opinion and can't be mistaken for factual assertions won't constitute defamation -- but that all political speech is not necessarily protected.

In Craven, the defendant mailed political ads in the '05 Raleigh City Council race indicating that, among other things, if the plaintiff were elected he would raise taxes to pay for development, and showing the plaintiff's name and picture sticking out of the jacket pocket of a developer fat cat. The plaintiff sued for, among other things, libel per se. The trial court dismissed, and the COA affirmed.

The COA noted that libel per se requires that the defamatory publication be "obviously defamatory." The COA also noted that rhetorical hyperbole and opinions are not subject to defamation actions, that only assertions of actual fact can be the basis for such a suit. Here, the defendant's campaign mailings were either opinions or were like PT. Barnum's political "humbug," which a reasonable reader would not believe to be literally true.

The COA also went to the trouble of underscoring in dictum that the defendant's assertion that all political speech is, by its nature, protected speech and not susceptible to defamation claims went too far. The COA noted that just because speech is used as a tool for political ends does not make it immune to legal challenge and that knowingly false statements and false statements made with a reckless disregard for the truth don't enjoy protection.

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