JANUARY 2013 UPDATE: Boswell dropped this lawsuit.

I don’t know whether anyone connected to Representative Leonard Boswell dangled a job in front of Ed Fallon in early 2008. But I’m confident that the defamation lawsuit Boswell filed against Fallon won’t end in a courtroom victory for the man who won the contentious 2008 Democratic primary in Iowa’s third Congressional district.  

On September 24, Fallon sent an e-mail to his “Fallon Forum” list with the subject line, “Don’t Waste Vote on Boswell.” Here’s the relevant portion:

Dear Friends,

Just as I am most certainly voting FOR Barack Obama, I am most certainly NOT voting for Leonard Boswell. I am also not voting for Tom Latham. Before I tell you who I AM voting for for Congress, let me give you five reasons why you, too, should not vote for Boswell.

1. Lack of integrity. Perhaps you have your own stories. I have heard some of them. Mine include Boswell sending an aide to bribe me with the offer of an $80,000 a-year job to not run against him. The aide also told me that Boswell was so in love with power that he had “become like Gollum with the ring.” The 2008 campaign itself was brutal, and it seemed there were no lies or half-truths that Boswell and his operatives would not stoop to.

2. Of the Democrats who have represented Iowa in Congress over the past several decades, there are none whose voting record is more out of sync with Democratic priorities than Boswell. Yet Party leaders insist we support him because Latham is so, so bad. It’s a lousy argument and we shouldn’t buy it, because when we do it empowers the Party to stuff another corporate Democrat down our throats next time. In fact, I guarantee you Party insiders have already drafted the short list of pro-big-business Democrats they want to foist on us when Boswell loses.

3. A common reason given for not voting for third party candidates is they will most certainly lose. Well, Boswell will most certainly lose, so let’s be consistent. In 2008, Boswell outspent me 3 – 1 and I got trounced (39%). At last count, Latham raised six times as much money as Boswell. I sure wish money in politics didn’t matter, but let’s be realistic. There’s a name for a candidate who gets outspent 6 – 1. It’s “loser.”

4. Some argue that Democrats and moderates need to support Boswell because we don’t want the US House controlled by right-wing Republicans. Granted, Paul Ryan’s House is a very scary place. But even the most favorable projections don’t see a path to Democrats taking control of the House. So, Boswell losing will not tip the balance of power in Congress.

5. Conceding the seat to Latham opens the door for a strong, progressive-populist Democrat to win the primary in 2014 and beat Latham in an election where voters are actually presented with a clear choice. The best thing we can do in the third district is to create some momentum through a write-in campaign for a strong progressive who can beat Latham in 2014. So, with that in mind, I’m writing in . . .

Frank Cownie! To be clear, I have not communicated with Frank about this in any way, shape or form. In fact, Frank may want to issue a disclaimer, and that’s fine. But Frank, you’ve served well as Mayor of Des Moines. You’ve got your priorities right. You’d make a heck of a Congressman, and if enough of us write-in your name, it will send a message to the Party elite that we won’t tolerate another hand-picked corporate Democrat representing us in Congress.

And to be clear about one other thing: I am absolutely not running for Congress ever again, neither in this life nor the next.

For the record, I voted for Fallon in the 2006 gubernatorial primary and in the 2008 primary to represent IA-03. I’ve also voted for Boswell in every general election since he’s represented Polk County and will do so again when I fill out my ballot at the auditor’s office this week.

Boswell’s cast plenty of bad votes from my perspective, especially on environmental issues. For that reason, I stopped donating to Boswell’s campaigns years ago and haven’t done any volunteer work on his behalf since 2006 (or maybe 2004). But compared to Latham, Boswell is the lesser evil by a mile. Click the links below to look at their voting records on your priority issues.

{{Tom Latham}}

{{Leonard Boswell}}

If Boswell loses in November, Latham will represent IA-03 for the next decade, regardless of whether the 2014 Democratic primary winner is a “strong, progressive-populist” or a “hand-picked corporate Democrat.”

But I digress. This post is about the defamation lawsuit Boswell filed on September 28, challenging Fallon’s claim about the job offer. Boswell has not elaborated on the legal action, except to say that he filed suit “Because [Fallon] told an untruth.”

I remember hearing rumors about this alleged job offer in early 2008 (not with any specific salary attached). Fallon acknowledged on Friday that he has told the story before, just not in such a public way.

“When it became clear to Leonard Boswell that I was going to run against him in 2008, he sent one person and then another person to meet with me and the idea was they’d give me an $80,000 job with his congressional staff if I would agree not to run,” Fallon told Radio Iowa tonight. […]

According to Fallon, it’s not just his word against the Boswell staffers. There was another witness.

“My wife at the time, Lynn, was with me at both meetings and the two people that we spoke to – again, I’m not making this up – if they want to commit perjury, then they can do that,” Fallon told Radio Iowa. “But if they’re going to tell the truth, the truth is he offered me that job.”

Lynn Heuss Fallon and Ed Fallon divorced two years ago. Fallon said he spoke with her today, after he was served with the legal papers notifying him of Boswell’s lawsuit. Fallon said he didn’t bring the alleged bribe up during his 2008 campaign against Boswell because he “didn’t want to stoop to that level.”

“I’ve mentioned this to people over the years. This just happens to be the first time that I’ve mentioned it in the context of a more public conversation, but to be frank to you, I’m surprised that it’s come to this,” Fallon told Radio Iowa tonight. “I’m surprised that Congressman Boswell wants to take this step because it’s not going to be good for him or for the impression that people have [of] politicians in general.”

As a public figure, Boswell has a very high bar to clear in any defamation claim. First, he needs to prove that Fallon’s allegations are false. Second, he needs to prove that Fallon spoke with “actual malice,” meaning that “the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth.”

If this case goes to trial, it’s going to be Fallon’s word (and possibly Lynn Heuss’ word) against the word of the two people allegedly connected to Boswell. Maybe they will deny ever meeting with Fallon and his wife. In that case, it’s the testimony of two people against the testimony of two other people. Fallon does not have the burden to prove that what he said reflects what really happened. Rather, Boswell’s attorney must prove Fallon’s claim is false.

Maybe these people will testify that they did meet with Fallon in early 2008, but not to offer him a job in exchange for staying out of the Congressional race. Even if Fallon misconstrued those conversations, it’s not defamation, because there would be no proof Fallon made inaccurate statements with “malice” toward Boswell.

Maybe Boswell will testify that the people who met with Fallon weren’t his employees, or weren’t acting with his knowledge and authorization. Again, Fallon could defend himself from a defamation claim by showing he had reason to believe the people were representing Boswell.

Aaron Larson listed factors for people to consider before filing a defamation lawsuit.

High Cost – Defamation actions tend to be costly to pursue. When brought against major media companies or publishers, or their employees, you should expect that the case will be capably defended by highly skilled defense attorneys.

Low Recovery – Defamation actions rarely result in sizeable awards of damages, and it is not unusual for the cost of pursuing a defamation action to exceed the ultimate recovery.

Publicity – The publicity associated with litigating a defamation claim can actually serve to expose a greater audience to the false allegations than they previously enjoyed. In the event that a newspaper or news show picks up the story of the defamation lawsuit, defamatory statements previously known to only a handful of people can suddenly become known by the entire community – sometimes the entire nation or world. Sometimes the media will do a poor job of subsequently covering the verdict, such that the public hears the defamatory allegations but doesn’t learn that the plaintiff was successful in the lawsuit.

Difficulty of Proving Defamation – It is sometimes not possible for a plaintiff to establish all of the elements of a defamation action, even where the defendant’s statements were entirely false. Most people who hear that a plaintiff lost a defamation action aren’t interested in the nuance – they will instead assume that the loss means that the allegations which inspired the suit were true.

Those last two points are critical. I don’t know how many people receive Fallon’s weekly e-mails, but it must be a lot fewer than the number of people who learned of the alleged job offer through a news report about Boswell’s lawsuit.

Moreover, if Boswell loses this case for any reason, many casual observers will conclude that what Fallon said must have been true.

In my opinion, it would have been less politically damaging for Boswell to deny Fallon’s claim through a spokesperson and move on.

On the other hand, filing a lawsuit has some PR value, because it communicates a strong denial. Perhaps Boswell and his advisers felt that at the height of a tough re-election campaign, it wouldn’t be sufficient simply to refute what Fallon wrote.

Win or lose in November, I doubt Boswell will take this case to trial. Elected officials rarely win defamation lawsuits. (Republican State Senator Rick Bertrand’s surprising victory in a case related to a 2010 campaign ad is the exception that proves the rule.) Why spend a lot of time and money on a trial that’s unlikely to produce the verdict you want, let alone a substantial award for damages?

UPDATE: Fallon confirmed on October 1 that he will fight the lawsuit and has hired Joseph Glazebrook to represent him in legal proceedings. Glazebrook has been in the news lately as the lead attorney representing the American Civil Liberties Union of Iowa and the League of United Latin America Citizens in their lawsuit against voter roll maintenance rules enacted by Secretary of State Matt Schultz this summer.