Senator Kerry Replies to Pickens' Moving the Goalposts

Dear Mr. Pickens,

Thank you for your response to my acceptance of your challenge.

I’m grateful that you are prepared to make good on your word and fulfill the offer you made publicly at the American Spectator Dinner in Washington, D.C. on November 6th.

I must remind you, however, that this was and is your “challenge,” not mine. You are, after all, the one who said explicitly at the dinner — in a way that was calculated to challenge any naysayer — that you would give one million dollars “to anyone who could show that anything the SBVT said was false.” (RedState.Com) These were your words — and nowhere did you ever suggest, as you are now trying to, that your challenge referred specifically and exclusively to any advertising by the SBVT.

As you know, the lies of the SBVT were not confined just to their ads; they were a constant barrage of television, radio, Internet, speeches, and forums in which — significantly bankrolled by you — they launched and repeated lie after lie. Your challenge expressly stood behind all of their allegations.

It is disturbing that in reaffirming the challenge you issued, your parsing and backtracking seems eerily reminiscent of the entire approach of the SBVT — say one thing, put out an allegation, then duck and weave, hedge and bob when your words catch up with you. I want to believe that this was not your intent because I am told that you are a man of your word, not “all hat and no cattle.”

Honor and duty, which you purport to defend, demand that you not selectively back away from your original challenge. Your offer clearly said — boldly, unequivocally — to an audience of your friends and supporters — that you would give “a million dollars to anyone who could prove wrong anything the Swiftboat Veterans charged about Kerry.” (AmericanThinker.com) In my letter, that is the offer which I accepted.

I was interested to read in your response that you don’t want to see the SBVT “maligned,” and that you aim “to prevent this important part of American history from being unfairly portrayed.” I accepted your offer precisely because I want to prevent the honorable records of the courageous men who served with me from being maligned by the repeated lies of this organization. I want to see the word “Swiftboat” restored to its original meaning — synonymous with honorable service to country, not political lies aimed to distort and divide. I would hope that your interests should also be in protecting the record of all those who served our country.

As I’ve said to you before, I am prepared to prove the lie and marshal all the evidence, the question is whether you are prepared to fulfill your obligation — no variations, no back pedaling, no retreat, no new bets, no changing the subject.

The only thing remaining now is to set the date for our meeting in an appropriate forum, after which I look forward to you keeping your word and writing a check for one million dollars payable to the Paralyzed Veterans of America so that we can put your money to good work for veterans who have returned home from Iraq and Afghanistan.

Sincerely,

John F. Kerry
United States Senator

Aug. 17, 2004 - the campaign held a press conference at which Gen. Wesley Clark (ret.), Adm. Stansfield Turner (ret.), and several swift boat veterans rebutted the charges. (4)

Aug. 19, 2004 - the Kerry-Edwards campaign announced its own ad "Rassmann." (4)

Aug. 20, 2004 - The Swift Liars' second television ad began airing. This ad selectively excerpted Kerry's statements to the SFRC on 4/22/1971. (7)

Aug. 22, 2004 - the Kerry-Edwards campaign announced another ad "Issues" which addressed the Swift Boat group's attacks.

Aug. 25, 2004 - The Kerry-Edwards campaign ... dispatched former Sen. Max Cleland and Jim Rassmann, to Bush's ranch in Crawford, Texas to deliver to the President a letter signed by Democratic Senators who are veterans. (The letter was not accepted.) (4)

May 3, 2004 - "Kerry campaign announced a major advertising push to introduce 'John Kerry's lifetime of service and strength to the American people.' Kerry's four month Vietnam experience figures prominently in the ads." (2)

May 4, 2004 - The Swift Liars, beginning their lies by calling themselves "Swift Boat Veterans for Truth", went public at a news conference organized by Merrie Spaeth at the National Press Club. (1)

May 4, 2004 - "The Kerry campaign held a press conference directly after the "Swift Boat Veterans for Truth" event...The campaign provided an information package which raised significant questions about 'Swift Boat Veterans for Truth.' " (3)

May 4, 2004 - Aug. 5, 2004 - No public activity by Swift Liars (?) Wikipedia entry (7) notes "When the press conference garnered little attention, the organization decided to produce television advertisements." (Ed. note - were there any public info or announcements, other than talk on blogs? Was there anything going on publicly? Did the campaign have reason to foresee what was coming - note that they must have, see the reactions to each ad).

By the time the Swift Boat story had played out, CNN, chasing after ratings leader Fox News, found time to mention the Swift Boat Veterans for Truth–hereafter, Swifties–in nearly 300 separate news segments, while more than one hundred New York Times articles and columns made mention of the Swifties. And during one overheated 12-day span in late August, the Washington Post mentioned the Swifties in page-one stories on Aug. 19, 20, 21 (two separate articles), 22, 24, 25, 26, 27, 28, 29, 30, and 31. It was a media monsoon that washed away Kerry’s momentum coming out of the Democratic convention.

Scalia revealed that he felt the landmark1964 ruling in New York Times v. Sullivan was wrong. That decision held that when a plaintiff in a defamation lawsuit is a public figure, such as a government official, the plaintiff can only prevail if he or she can show the statement was made with "actual malice" - a problematic phrase.

The requirement of "actual malice" means that the person publishing the defamatory statement must have done so with one of two states of mind: Either he knew the statement was false, or he published it with reckless disregard to whether it was true or false.

Simple negligence, then, is not enough under New York Times v. Sullivan: "Reckless disregard" requires that there had to have been a compelling reason to prompt taking some care before making the statement.

In practice, the "actual malice" standard means that the plaintiff usually loses. It's virtually impossible to prove with clear and convincing evidence (as is also required when the standard applies) that the publisher of the false statement either knew it was false, or published it despite good reason to more fully investigate the matter, thus recklessly.

Snip...

The constitutional law of defamation is a disaster. It is nearly incomprehensible. It is unfair. It is unjust. And it is long overdue for a correction. Sadly, I could randomly select dozens upon dozens of cases to make the same point the Lohrenz case makes.

Scalia is correct: Everybody should be able to protect their reputations. But not until New York Times v. Sullivan -- which literally changed the law of the land overnight -- is reversed, will that ideal be a reality.

Hopefully, Justice Scalia was giving us a hint of coming changes at the Court, when defamation cases are heard. At a minimum, the Court ought to make clear that only true public figures are deemed public figures for defamation law - for current law only encourages the victimization of private persons. Better yet, the Court should chose a more realistic standard than "actual malice" - one under which even public figure plaintiffs who are lied about, can get justice.

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In other words, they made factual claims about being eyewitnesses to events. Such claims are not questions of opinion, but of fact.