Copyright © 2018 Albuquerque Journal
SANTA FE – In the campaign ad, Democrat Garrett VeneKlasen sounds confident – a little cheeky even – as he condemns a potential opponent, state Land Commissioner Aubrey Dunn.
“If honesty were leather,” VeneKlasen says, “the State Land Office couldn’t saddle a flea.”
He tells listeners that Dunn, a Republican at the time, negotiated a billion-dollar power line through his personal ranch – a transaction “that’ll lead to a lot of money flowing his way.”
But it isn’t true, Dunn says, and he sued for defamation.
Now the 60-second radio ad – involving two candidates who aren’t even running for the same office – is at the center of an unusual legal dispute playing out in a Torrance County courtroom.
As New Mexicans prepare for an intense election season filled with negative advertising, the Dunn lawsuit illustrates the powerful First Amendment protections afforded to political speech.
The judge in the case, state District Judge Matthew Reynolds, has already undercut one of the claims in the ad.
It’s clear, he said, that Dunn didn’t negotiate the placement of the power line. And he said he was “flabbergasted” by part of VeneKlasen’s testimony about the ad.
But that alone isn’t enough to win a defamation lawsuit.
Judge Reynolds has already rejected Dunn’s motion to order a halt to airing or publishing the ad.
Reynolds said courts must take care to avoid “chilling political speech,” even if he himself isn’t thrilled with negative campaign ads.
“I’d rather have that than lose the First Amendment,” the judge said at one point in a hearing last year.
Proof of ‘malice’
Defamation lawsuits are relatively rare in New Mexico, attorneys say, and defamation lawsuits involving campaign ads are rarer still.
The Dunn case underscores how difficult it is to win.
The land commissioner doesn’t have to show just that the ad was false. Dunn has to prove that VeneKlasen acted with “malice” – that he either knew it was false and aired it anyway, or that he acted with reckless disregard for whether it was false.
As a public figure, Dunn faces a higher bar for winning a defamation suit.
“The courts have consistently held that political speech is something which needs to be carefully protected and that you need to be able to have a robust debate,” said state Rep. Jim Dines, an Albuquerque Republican and a retired lawyer with expertise in the First Amendment. “Now what does that mean? How far can it go is usually decided on a case-by-case basis.”
The framework for what’s legal in cases like Dunn’s – the actual malice standard – is set out in a landmark decision by the U.S. Supreme Court in a case known as The New York Times Co. v. Sullivan.
The case centered on a 1960 advertisement published in The New York Times, critical of the police response to civil rights protesters. Some of the claims were inaccurate, and a public safety official in Alabama argued it was defamatory.
The Supreme Court eventually sided with the Times, taking note of the nation’s commitment to “uninhibited, robust, and wide-open” debate on public issues.
Of course, those protections don’t always sit well with candidates.
Former state Senate Majority Leader Michael Sanchez, D-Belen, said he considered filing a lawsuit after an attack ad mocked him in 2016 for accepting a taxpayer-funded trip to Hawaii.
Sanchez says he has never been to Hawaii, much less traveled there with public money.
Sanchez, an attorney, said he researched the law but determined the threshold required for an elected official to win in court was too high.
“The burden of proof is different than it is for a regular person,” he said.
Sanchez, a Belen Democrat, lost the race in 2016.
Chuck Peifer, an Albuquerque lawyer with expertise in the First Amendment, said the law generally protects people speaking about public figures, even if they don’t get their facts right.
“You’re allowed to make mistakes,” he said.
But you can’t do it with knowledge that what you’re saying is false or with reckless disregard for whether it’s false.
Matters of opinion, meanwhile, are usually protected, said Peifer, who represents the Albuquerque Journal.
“You’re entitled to express your opinion,” he said, “even if your opinion may be ill-founded.”
Dunn owns a cattle ranch 110 miles southeast of Albuquerque, near Mountainair.
A proposed power line would run right through it, in addition to going through state trust lands managed by Dunn’s office, carrying wind-generated electricity from New Mexico to Arizona.
VeneKlasen zeroed in on the intersection of Dunn’s ranch and the SunZia transmission line when he announced his campaign for land commissioner in May last year.
In a statewide radio ad, he said that, as commissioner, Dunn “negotiated a deal to run a billion-dollar power line, not only through state trust land, but also through his personal ranch property. That’ll lead to a lot of money flowing his way.
“Must be a coincidence, huh? Nah.”
VeneKlasen urged people to vote for him as land commissioner to “end the corrupt self-dealing” and provide a fresh start.
But he wasn’t quite so direct on the witness stand.
Under oath in a Torrance County courtroom last year, VeneKlasen was asked who in the Land Office is corrupt, that he knows of.
“No one,” he responded, according to a court transcript.
And he said he wasn’t specifically talking about Dunn when he mentioned “self-dealing” in the radio ad – testimony the judge said left him “flabbergasted.”
VeneKlasen was actually speaking more generally about the history of the State Land Office, his attorney, Karen Mendenhall, told the judge.
Furthermore, the ad was based on publicly available information, including news articles, she said.
Dunn and his wife, Robin, for their part, testified in court that they had agreed to buy the ranch in 2014 without realizing the power line was supposed to cross through the middle of it.
The route, in any case, was set before that, Aubrey Dunn said, and he didn’t become land commissioner until 2015.
Judge Reynolds summarized it this way: “It’s clear that Mr. Dunn did not negotiate the placement of the power line as it currently stands.”
But the judge rejected Dunn’s bid for a court order halting publication of the ad. He took note of the Supreme Court’s decision in the Sullivan case.
“The First Amendment is critical to our democracy,” Reynolds said at one point.
And he may be growing frustrated with Blair Dunn, the land commissioner’s son and attorney.
In a hearing this month, the judge said Dunn will have to pay part of VeneKlasen’s attorney fees for a dispute involving discovery – the process by which attorneys share information and evidence ahead of a trial, according to a log of the hearing in court records.
Reynolds also told Blair Dunn that he needed to decide whether he really wanted a trial or was just using the case as a platform for complaints about a political opponent of his father, according to the log.
In a statement to the Journal, Blair Dunn described the judge’s “harsh reaction and commentary” as “inexplicable” and he questioned whether he’s being treated fairly.
Oddly enough, Aubrey Dunn and VeneKlasen aren’t even running for the same office.
Dunn, who switched his affiliation from Republican to Libertarian, is running for the U.S. Senate, challenging incumbent Democrat Martin Heinrich.
VeneKlasen, in turn, is one of three candidates seeking the Democratic nomination for land commissioner.
And soon enough, Dunn may not even own the ranch. It’s on the market for about $8.9 million.
He and his wife haven’t agreed to allow the transmission line through the ranch. The SunZia project may take legal action to acquire the right to do so anyway.
Legality aside, New Mexicans can expect plenty of negative advertising this year. Voters will decide open races for governor, land commissioner and two congressional seats. And those are just the races without an incumbent.
Sanchez, the former senator, said people should be skeptical of the claims they see.
“These ads that come out nowadays are so misleading,” he said.
First Amendment attorney Peifer suggests that people examine the quality of the evidence used to support political claims.
“Listen to all of the evidence, not just what a single self-interested speaker might have to say,” he said.
Blair Dunn said the First Amendment protections for free speech are vital but “for that speech to have meaning, it must be honest as to the facts.”
Mendenhall, speaking to the judge last year, suggested that litigation isn’t the right way to respond to campaign advertising.
“If a candidate ran to the courthouse every time someone issued an ad that they took offense to, your honor, you would not be able to do much more on, at least, even-numbered years,” she said.