Hey, Tyrion, I heard someone's trying to sue you again.
Yep. It's defamation of character they say.
What'd you do this time?
Well, there's this fella, Woody Myers, who's running for Congress in Indiana's 7th Congressional District. Back in the late 1990s he testified before Congress on behalf of a bunch of lobbyists and corporations who were trying to stop the Patient's Bill of Rights from being passed. I wrote a blog post about it in which I criticized his position and suggested that I couldn't trust him on health care issues as a result.
Let's just say Woody Myers doesn't take criticism well. I'm hoping this isn't a preview of what his constituent services would be like.
Is anything you wrote false?
Nope. It's all based on his testimony before Congress and his subsequent lucrative career as an executive for an HMO that is now being sued by the State of California. I say a few things in the post that are extrapolations from those facts, but those are pretty obviously my opinions - and pretty damn reasonable opinions at that.
Now wait a second. There has to be another side to this story. What is Dr. Myers' campaign saying?
They refuse to identify what in particular they find defamatory. They're also threatening legal action against David Orentlicher's campaign for a TV spot that makes similar claims. In particular, David Orentlicher's spot says that Woody Myers "worked with Republicans to defeat the Patient's Bill of Rights." The Myers' campaign has responded that that claim "couldn't be further from the truth," but it hasn't elaborated on the details.
What could that mean?
In a literal sense, that statement would imply that Woody has worked with Democrats to pass the Patient's Bill of Rights. Since that didn't happen, I'm at a loss for what the "truth," as the Myers campaign sees it, could be. I suppose it's possible that they'll argue that since he never said the words "Don't pass the Patient's Bill of Rights" he wasn't working for its defeat.
Why isn't that a fair argument?
For a couple of reasons. First, because although he never said those exact words, he repeatedly argued that Congress shouldn't change the law in a variety of ways that the PBR would have at exactly the same time the PBR was before Congress. Quite a coincidence, no? This argument is basically akin to me saying, "Eat a delicious frozen treat that rhymes with the words 'mice steam'" and then claiming I didn't tell you to eat ice cream because I never said the words. Second, the organization that Dr. Myers was testifying on behalf of directly and vocally opposed the PBR. If Dr. Myers wasn't aware that his testimony was being used to oppose the PBR, it may not make him a shill, but it certainly would make him a dupe. Dr. Myers is no dummy, though. I don't think it's credible to suggest that Dr. Myers was unaware of the political context of his testimony.
You don't sound very concerned. Why the calm demeanor, Tyrion?
Well, the idea that Dr. Myers has ground for a defamation suit is just absurd. First and foremost, the truth is always a defense in a defamation suit and my claims are true. In addition, because Dr. Myers' is a public figure, he would also have to prove "actual malice." That's a term of art, which means that I knowingly and deliberately spread defamatory material. In other words, if I happen to believe what I wrote was true, it's not defamation. He would need to prove that I knew it was false, but did it anyway. To make matters worse, it's pretty clear that other informed observers came to similar conclusions, meaning that, either my interpretation was reasonable given the public information available, or a whole bunch of unconnected people are involved in a conspiracy to defame Dr. Myers.
If he couldn't win this suit, why is he threatening it?
Maybe he just wants me to shut up. In Indiana, however, filing a lawsuit to shut up a critic on an issue of public interest is illegal. Indiana has what's known as an anti-SLAPP law. SLAPP stands for Strategic Lawsuit Against Public Participation and it generally means a lawsuit that is unlikely to succeed on the merits but is filed to intimidate a critic. Any legal action actually brought against me in connection with my blog post would almost certainly be a SLAPP and I might be eligible to receive damages.
Do you actually think he would file a lawsuit?
Not really. He'd clearly lose and there's a good chance he'd end up paying my lawyer fees and a little something extra. I doubt he'll actually file anything against David Orentlicher either. My guess is that they'll gesture and gesticulate, huff and puff until Tuesday and then promptly shut up after the primary.
Why is he doing it then?
I dunno. Maybe they think I was coordinating with the Orentlicher campaign (I wasn't) and they see it as merely a part of their push back on the "defamatory" ad. In other words, they're looking to publicize this attack as much as possible. The gamble might be that they think this will destroy David's campaign and his supporters will go for Woody. Alternatively, they may think that they can earn sympathy points from voters at large if they're perceived to be victims of an underhanded attack.
Do you think that would work?
At the very least, it's a high-risk strategy. Woody certainly has the money to run counter-ads and I'll be surprised if the Star doesn't cover this. If he can dominate that coverage and flood the airwaves with persuasive ads, it might work. But I think there's a lot of margin for error here. At the very least, the newspaper coverage will repeat the original claims and investigate them. If they report that the claims are accurate - as I imagine they will - this might do a whole lot more to publicize the attack than to make Dr. Myers into a sympathetic figure. Negative campaigning - even publicly "discredited" negative campaigning - tends to work, or, at the very least, drive up the negatives of both the attacker and the attacked. In this case, the attacker and attacked are both behind in the race, meaning this isn't likely to help Woody close the gap with André . Meanwhile, threatening to sue David isn't likely to ingratiate Woody to David's supporters. If they think David is a lost cause, they might turn to André simply to ensure that Woody doesn't get it. Finally, it's difficult to believe that there's even enough ad space available for Woody to buy. Most voters are tuning out ads at this point, having been flooded with them for the past month.
Does this tell you anything else?
Yep. It tells me that Woody's internals are probably not too far off the Howey poll. This strategy has incredible potential to backfire. You don't use a high-risk strategy if you think the status quo favors you. You use a high-risk strategy if you think that, if things are left as they are, you are going to lose. My sense is that Woody's $1.5 million isn't putting him where he wants to be, so he needs a game changer. This is the play. If it works, kudos to the Myers campaign. I'm betting it doesn't.
Crossposted at Tyrion's Point and Blue Indiana.