You can sue anyone for anything. But when you're a public figure up against the news media, your chances of winning are about as hot as Lindsay Lohan's "Playboy" spread.
Friday morning Herman Cain's campaign manager Mark Block showed up on Fox News to talk about, what else? The old (yet developing) sexual harassment allegations Cain is facing. "If [the Politico article] was held up to the same standards as the code of ethics for journalism, the people involved with that would be fired," Block said. Politico broke the story Sunday about sexual harassment claims brought against Cain when he was chairman of the National Restaurant Association in the late '90s.
The host, Martha MacCallum, asked whether the Cain campaign had any plans on suing Politico. "It's being discussed. End of story," Block said.
But what exactly would they sue for? Block didn't say, but if he's thinking libel, he should think again. And that's my expert legal opinion, despite never having been to law school.
Look at the requirements to successfully sue for libel, according to the Media Law Resource Center:
In order for the person about whom a statement is made to recover for libel, the false statement must be defamatory, meaning that it actually harms the reputation of the other person, as opposed to being merely insulting or offensive.
Did Politico's story harm Cain's reputation? Not so far as the presidential primary polls indicate. He's 1 point under Mitt Romney in a new ABC News poll. But maybe.
The statement(s) alleged to be defamatory must also have been published to at least one other person (other than the subject of the statement) and must be "of and concerning" the plaintiff. That is, those hearing or reading the statement must identify it specifically with the plaintiff.
Okay, got that.
The statement(s) alleged to be defamatory must also be a false statement of fact. That which is name-calling, hyperbole, or, however characterized, cannot be proven true or false, cannot be the subject of a libel or slander claim.
The Politico article stated that there were two formal complaints against Cain and two formal settlements. Cain himself has said as much. No false statement of fact there.
The defamatory statement must also have been made with fault. The extent of the fault depends primarily on the status of the plaintiff. Public figures, such as government officials, celebrities, well-known individuals, and people involved in specific public controversies, are required to prove actual malice, a legal term which means the defendant knew his statement was false or recklessly disregarded the truth or falsity of his statement. In most jurisdictions, private individuals must show only that the defendant was negligent: that he failed to act with due care in the situation.
So, as a public figure, Cain's got to prove Politico "recklessly disregarded the truth" when they published their piece. They've got the sources and the papers to back up their story. What are his chances? Slim.
A defamation claim -- at least one based upon statements about issues that are matters of public interest -- will likely fail if any of these elements are not met.
That last bit might carry the most weight. It's an election and it doesn't get anymore "matters of the public interest" than that.