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7 J.L. & Pol. 417 (1990-1991)
SLAPP/SLAPPback: The Misuse of Libel Law for Political Purposes and a Countersuit Response

handle is hein.journals/jlp7 and id is 427 raw text is: SLAPP/SLAPPback: The Misuse of Libel Law for Political Purposes and a Countersuit Response by Edmond Costantini* and Mary Paul Nash** INTRODUCTION A quarter-century ago the Supreme Court, in its landmark New York Times Co. v. Sullivan' decision, refashioned libel jurisprudence in America. This decision and its progeny produced a national libel stan- dard requiring public figure plaintiffs to show not only that the offend- ing material was false and defamatory, but also that it was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not.2 Since libel plaintiffs in the public spotlight would now have to demonstrate impure motives and/ * B.A., New York University; M.A., University of Connecticut; Ph.D., University of California, Berkeley. Professor of Political Science, University of California, Davis. He served as an expert witness for the Family Farmers in Jeff Thompson, et. al. v. J.G. Boswell, No. 179027 (Cal. Super. Ct., Kern County,July 14, 1988), which is the prinicipal case discussed in this article. 0* B.A., Harvard University; M.A.,J.D., University of California, Davis. She will become an associate at San Francisco's Steinhart & Falconer in the Fall of 1991. The authors would like to thank colleague Professor John Gates, Professors Floyd Feeney and Margaret Johns of the University of California, Davis School of Law, and James Brosnahan of San Francisco's Morrison & Foerster for their helpful comments. They are also indebted to Ralph Wegis of Bakersfield's Klein, Wegis and Duggan and to John Means for their generosity and their insightfulness, and for providing them with an unusual opportunity to view, at ground level, the libel suit/countersuit process. Finally, they appreciate the support of the Institute of Governmental Affairs, University of California, Davis. I New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 2 Id. at 279-80. At the time of New York Times, at least sixteen states had adopted liberal rules of libel that protected non-malicious falsehoods about public officials-that is, statements that, although false, were believed with probable cause to be true when they were written. C. Lawhorne, The Supreme Court and Libel 19 (1981). The 1964 Supreme Court decision essentially adopted such a rule as the nation's libel standard. See id. at 26, 30-34. The standard constituted the first national standard since the Alien and Sedition Acts of 1798, Act ofJuly 14, 1798, ch. 74, 1 Stat. 596; Act ofJuly 6, 1798, 1 Stat. 577; Act ofJune 25, 1798, 1 Stat. 570; Act ofJune 18, 1798, 1 Stat. 566 (which expired by their terms in 1801 and were never stringently enforced due to their obvious unconstitutionality, see New York Times, 376 417

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