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Could the Maxine Waters Lawsuit End Attack Ads?

Representative Maxine Waters. (Photographer: Bloomberg)

This week, two legal cases grabbed all the attention: the $5 million verdict for defamation and assault in E. Jean Carroll’s lawsuit against former President Donald Trump, and the decision by the Justice Department to bring fraud charges against George Santos, the Long Island congressman. But it’s Wednesday’s decision by a California appellate court to reinstate a suit against Representative Maxine Waters that might have the most influence on how electoral contests are conducted down the road.

The facts are quickly dealt with. The plaintiff, Joe E. Collins III, claims that during their bitter 2020 election battle, Waters ran repeated advertisements asserting that he had been dishonorably discharged from the Navy. Collins argues not only that the statement was false, but that the truth was readily discoverable. He contends that once he heard rumors of Waters’s plan of attack, he even posted proof of his discharge status on his Facebook page.

Waters’s defense is that her error, if any, was unintentional; that she had a good-faith belief in the truth of what she said. She cites a list of alleged disciplinary issues Collins had while in uniform, including having sex with a subordinate. She points to a trust he allegedly created in which he values his own birth certificate at $100 billion. As the court puts it, Waters believed her opponent to be of “dishonorable character.”

The trial court dismissed the action. A unanimous panel of the court of appeal, in an opinion authored by Judge John Shepard Wiley Jr., has now reinstated it.

Politics is a rough game, where rhetorical elbows fly. I doubt that there’s ever been a campaign where every word out of a candidate’s mouth is the unvarnished truth. The problem is what happens when the untruth doesn’t just help one’s electoral chances but actually damages an opponent’s reputation going forward.

Political candidates rarely sue for defamation. A 1949 article in the Columbia Law Review suggests the most sensible explanation: “concern that a jury will regard a politician plaintiff with a suspicious eye” because seekers after elective office should be able “to take it and to dish it out.”

Or maybe candidates rarely sue because they rarely win. We can pick a couple of examples at random: In 2017 a Texas court dismissed an action by a school board candidate who claimed that critics had insinuated falsely that he’d taken a bribe. Just this past March, a federal court in West Virginia tossed a defamation suit by a defeated US Senate hopeful who accused Donald Trump Jr. of calling him a “felon” when he’d been convicted only of a misdemeanor. The defeats for plaintiffs go on and on. 

Small wonder. A candidate for public office is almost by definition a public figure, meaning that a defamation claim fails unless the defendant made the offending statement with actual malice — typically, knowledge of falsity or reckless disregard for truth of falsity. This proof, moreover, must be made by the high standard known as “clear and convincing” evidence.

Although the actual malice standard has its critics, the rule plays a vital role in keeping political debate open and free-swinging. In the words of the California court, the standard “protects some falsehoods in order to safeguard speech that matters.” The bar is justifiably tough to clear – but Judge Wiley’s opinion suggests that Collins’s suit against Waters might be the rare one that gets there.

Waters’s difficulty, according to the court, is that although she points to considerable evidence suggesting Collins is a bit erratic, none of it goes to whether or not discharge was honorable — a simple issue of fact that “would have been easy to check.” Unfortunately, like so many politicians today, Waters seems to have chosen instead to double down. Here’s the court: “Her appellate briefing asserts that today, years later, she still does not know the truth about whether Collins’s discharge was dishonorable. This disinterest in a conclusive and easily-available fact could suggest willful blindness.”

The precedents make clear that the actual malice standard is not met merely because the defendant makes a damaging assertion without first investigating its truth. But speaking out of a willful blindness is different: “[P]eople purposefully ignorant about the truth can have a high degree of awareness of probable falsity of a claim they deliberately avoid checking.”

In Waters’s defense, she does appear to have made some efforts to discover Collins’s discharge status. Perhaps her efforts were insufficiently robust. Or perhaps, as the court concedes, a reasonable jury might find that Waters did enough. Just because the court has said Collins can sue doesn’t mean he will prevail.

I’m torn. I believe in free and open debate, but the courts are right to punish reckless speech that severely damages personal reputation. The fact that the speaker is running for office should be no defense. Still, if the case does go to trial, Collins had better have a slam-dunk case. Because the bar is high for a reason. The last thing we need in our badly broken public discourse is judicial monitoring of the rhetoric of election campaigns.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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