Weicker Faces the State

Like most professional politicians, former U.S. Senator and Governor Lowell Weicker tends to filibuster journalist’s questions. And, solipsistic by nature, Weicker has a way of relating all questions to his own personal experience.

Dennis House of WFSB’s Face the State opened his interview with Mr. Weicker -- "the only man alive to serve as both governor and senator of our great state” – by asking what he thought of the U. S. Senate race so far.

Mr. Weicker had recently endorsed Democrat U.S. Representative Chris Murphy over Republican challenger Linda McMahon. Mr. Weicker and Mrs. McMahon have a shared past together. Mr. Weicker served on the board of WWE, pulling in, according to one press report $150,000 per year for his no doubt invaluable services. Mr. Weicker was forced off the board, after which his change in salary led to a corresponding change of heart. In his introduction, Mr. House referred to Mrs. McMahon correctly as Mr. Weicker’s “former colleague.”

McMahon, Republican!!!

Polls showing that Republican nominee for the U.S. Senate Linda McMahon had overcome a vote advantage once held by Democratic U.S. Rep. Chris Murphy have the left among Connecticut commentators – pretty much all commentators in the state – in a furious snit, best typified by a flare sent airborne by Colin McEnroe, the host of The Colin McEnroe Show on Connecticut Public Radio (WNPR). In addition to hosting his own program at WNPR, Mr. McEnroe is a Hartford Courant columnist:

“When all else fails, hit her with the dirtiest smear: Constantly mention that she's a Republican. She could tip the Senate into Republican control. Republican means you don't get the Medicare you've been paying for all these years. It means pre-existing conditions are back on the list of Gigantic Worries, and your 24-year-old can be kicked off your policy. It means your taxes go up and LeBron James' don't (sic). I am fond of many Republicans, but I wouldn't want to run as one in Connecticut in 2012. So: She's a Republican. (This is something she keeps on the down-low.) Republican! Republican!”

McMahon And The Editorial Boards

Linda McMahon, now engaged in a Republican Party primary with former U.S. Representative Chris Shays, has been around the Connecticut editorial board block before when she ran on the Republican ticket against then Attorney General Richard Blumenthal.

Mr. Blumenthal had earned some twenty years of fawning commentary chits collected from Editorial Board Writers (EBW) and commentators, and it was plain from much of the adoring press reports issuing from the attorney general’s office, many of them put into print with little or no editing, that he had cashed in his during his campaign for the U.S. Senate.

So then, Mrs. McMahon (LM in the imaginary dialogue below) knows there are wolves dressed in wolves’ clothing out there eager to pounce.

EBW: Quick now: Do you think the United States should assist, behind the scenes of course, in overthrowing Yahya Jammeh?

LM: What?

Perhaps the easiest questions to handle are those surrounding World Wide Entertainment (WWE).

EBW: What about the pornography issue, Mrs. McMahon?

LM: It’s not porn, but WWE fixed all that.

EBW: Should lawyers from WWE have threatened to sue a political commentator for having exercised his constitutional right to say that the company you once served as CEO was engaging in pornography?

LM: The statement is not true, and corporations have a responsibility to protect their brands from questionable assertions. But the answer to your question is – No.

EBW: Well, do you plan to relay your opinion to your husband and WWE lawyers?

LM: I just did. I’ve always been partial to Dick the Butcher’s view of lawyers. You remember your Shakespeare: “First thing we do, let’s kill all the lawyers.”I shouldn’t be so hard on them. They do perform a well-paid sometimes necessary service. And if we shot them all, the halls of Congress would soon come to resemble the sadly diminished staffs of Connecticut newspapers, which, come to think of it, might not be a tragedy after all… Wait a sec: I’ve just had a mental flash on Yayah, and – Yes – the United States should work quietly in the background to rid post-colonial states of pestiferous dictators, though I am not quite ready to send the drones in on them. You haven’t yet asked me any questions on the economy, still stuck in low dive. Here are some figures taken from an article written by Jonah Goldberg of National Review that could be obtained by any curious editorial board writer from any number of sources: From the end of World War II to the beginning of the Obama administration, federal spending had never exceeded 23.5 percent of the Gross National Product (GDP). The average for the Bush years was 19.6 percent. The U.S. broke 25 percent in 2009 because of measures initiated by Bush and afterwards augmented by Obama. In the last four years, we have added $6.3 trillion in federal debt, $5 trillion on Obama’s watch. Debt held by the public in 2008 was 40.5 percent of GDP. The debt today is an alarming 74.2 percent and rising…

EBW: (eyes glazing over) Excuse me…

LM: Excuse me… These are indisputably accurate measurements of spending increases. Everyone running for Congress this year and everyone writing about the economy should be aware of these figures. And no one should be allowed to pass through the doors of Congress following the election without having proposed a plan to reduce those percentages. I hope your next question is: What’s your spending reduction plan – because our time for this interview is running short, and the nation is on its knees praying for spending relief. When the time comes for you to interview U.S. Rep Chris Murphy [the likely winner in the Democratic primary for the U.S Senate], you might ask him why his party has not produced a passable budget since the beginning of the Obama administration – even when Democrats controlled both houses of Congress and the presidency. If the budget is kicked down the road by means of continuing resolutions, you can’t control spending.

One feels tempted to shout in Mrs. McMahon’s ear: Get thee to an editorial board.

My best guess – and I must confess that I have no access to inside information from the McMahon camp – is that Mrs. McMahon is being held prisoner by her Beltway staff and advisors, possibly some lawyers, who may have told her: “Now look here, Linda, we absolutely forbid you to throw around the silverware until the Republican primaries are over, and this for the best of reasons: You are going to win the primary without firing a shot at Mr. Shays. After that -- game’s on. Go kick butt.”

Never having been a paid political consultant, I do not know whether such advice is good or bad politics, if it has been proffered.

I do know that left of center editorial board writers are waiting anxiously to plant their progressive hobnailed boots on Mrs. McMahon’s face.

Mrs. McMahon should give them the opportunity to howl and stamp their feet and yelp and moan. People in Connecticut, as she well knows from her glory days in WWE, love a gaudy political show almost as much as they like mud wrestling contests and the soft porn endemic in widely viewed and popular Madonna concerts.

McMahon And Shays At UConn

After the debate at UConn between Republican contenders for the U.S. Senate Chris Shays and Linda McMahon, Mr. Shays, who mounted the stage favored by Connecticut’s left of center media, temporarily lost a few votes within the journalistic community.
David Collins of the Day in New London wrote:

“McMahon did so much better in Thursday's debate that it makes you wonder why she isn't the one calling for more debates in the primary campaign, not Shays…

“Shays looked every bit as testy, annoyed and frustrated at the end as when the debate started…”

“Shays on Thursday just seemed kind of mean-spirited.”

Mr. Shays’testiness began, Mr. Collins noted, with a microphone malfunction.

“In fact, Shays threw a bit of a tantrum at the outset when there was a problem with the auditorium sound system at the University of Connecticut.

“He snapped a terse ‘no’ when offered a handheld microphone, saying everyone should just wait until the wireless microphones were fixed. Everyone did wait.

“Then, once the debate was under way, the former congressman turned irritable again every time McMahon ducked one of his insults about her tenure as head of World Wrestling Entertainment, as if she were somehow approaching him with a WWE handheld microphone.”

It may not be the case that Mr. Shays’ testiness arose from annoyance at the thought that “someone who peddled TV trash would take a Senate seat he considers his due.” Mr. Shays does not strike most people who know him well as the prototypical arrogant politician. In politics, however, appearances are perceived as reality. More likely, the former U.S. Representative wished to communicate his personal distaste with the raunch exhibited at some past World Wrestling Entertainment (WWE) events. This distaste may have appeared as arrogance to some in the audience. Perhaps Mr. Shays could use a new debate coach.
The first rule of debate is this: When the audience has come to see a public debate, you’d best give then a debate rather than a public thrashing.

At the Hartford Courant, Rick Green scored the debate a win for Mrs. McMahon:

“But the lasting image of Linda McMahon is a candidate who stuck to her talking points and who brought the discussion back to the economy whenever Shays went nuclear. Because of that, she didn’t lose. For a candidate with a big lead, that’s all that matters. And with only one more debate scheduled, she’s more than half way to the nomination.”

The Shays camp is making fatal errors based on a few misleading theories.

The notion that Mrs. McMahon can buy elections with her personal fortune was put to flight during her last run for the U.S. Senate in a contest with then Attorney General Richard Blumenthal, who won U.S. Senator Chris Dodd’s vacant seat after Mrs. McMahon spent an inordinate amount of money -- $50 million in round numbers – attempting to defeat him. You cannot plausibly argue that Mrs. McMahon can buy a U.S Senate seat with money alone in the face of such a rout without appearing to be the much derided “used car salesman” of ancient memory.

It is not true that Mr. Shays can prevail over Mrs. McMahon by harnessing WWE thunderbolts deployed effectively by Mr. Blumenthal in his campaign. Every campaign is different and, whatever virtues he may possess, Mr. Shays is no Mr. Blumenthal. Neither is U.S. Representative Chris Murphy, the likely Democratic candidate for U.S. Senator Joe Lieberman’s soon to be vacant seat, Mr. Blumenthal. When you change the characterization in a play, you end up with a different narrative. Even Mrs. McMahon is not the same performer she was in her earlier campaign, and the differences were noticed in her most recent debate by commentators fully prepared to support Mr. Shays.

Some commentators remarked that Mrs. McMahon during her debate was well “scripted,” a devil word usually employed by opponents to suggest that there is no “there” there. But the absence of a “there” was not at all apparent during the UConn debate.

Why?

Mr. Shays, content to hurl flaccid thunderbolts, did not confront Mrs. McMahon on her program – which is detailed and thoroughly assimilated. Mrs. McMahon is not simply saying her lines trippingly on the tongue. Her program is an authentic reflection of her own passionately held views. And Mrs. McMahon is not the wooden, empty headed WWE bugaboo displayed in scores of reports written by left of center progressively inclined commentators whose dearest wish is that Mr. Murphy will not make the same mistakes made by Mr. Shays in his UConn debate with Mrs. McMahon.

WWE vs. Powell

It doesn’t take much to startle most journalists in Connecticut, many of whom are as lion-shy as gazelles. A growl from a snarling lawyer is in most cases sufficient to quiet the whole herd.

Dismayed by a political column written by Chris Powell of the Journal Inquirer, World Wide Entertainment (WWE) senior vice president of marketing and communications Brian Flinn wrote to Mr. Powell an e-mail threatening to sue if Mr. Powell did not issue a retraction “by June 4, 2012 in as public a manner as that in which you made these false statements.” Should Mr. Powell fail to comply with Mr. Flinn’s demand, “we will seek legal and all available remedies,” the e-mail specifies.

In the e-mail sent to Mr. Powell, copied to many other Connecticut newspapers, Mr. Flinn advises, “This time, WWE is taking a proactive and aggressive approach to ensure that accurate facts and statements are made about our company and brand. This has absolutely nothing to do with politics.”

A threat to sue must mention the word “malice,” and Mr. Flinn’s e-mail does not disappoint: “That you would repeat the false statement that WWE is in the pornography business, after being told of the falsity of that statement, is especially strong evidence of malice.”

In the context of the First Amendment, public officials and public figures must satisfy a standard that proves “actual malice” in order to recover for libel or slander. Legal malice must be committed intentionally without just cause or excuse.

In order to recover damages, WWE would have to show “actual malice” on the part of Mr. Powell. The legal standard for publications is New York Times vs. Sullivan 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).

In that case, the Supreme Court ruled that public officials and public figures cannot be awarded damages unless they prove that the person accused of making the false statement did so with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement. Demonstrating malice in this context does not require the plaintiff to show that the person uttering the statement showed ill will or hatred toward the public official or public figure.

It is nearly impossible to sustain that standard in a commentary piece. There are multiple difficulties, these among others: Courts have allowed hyperbole in commentary pieces; pornography, more often than not, lies in the eye of the beholder; most often, communications of the kind sent by Mr. Flinn are intended to curtail free speech, and the First Amendment is a mighty bulwark against the suppression of speech.

This is what Mr. Powell said of Mrs. McMahon in his column: “Her practical qualifications for office did not extend beyond her fantastic wealth, and that wealth derived from the business of violence, pornography, and general raunchy.”

This is what Mr. Flinn said Mr. Powell said in his column: “That you would repeat the false statement that WWE is in the pornography business, after being told of the falsity of that statement, is especially strong evidence of malice.”

In a suit alleging legal malice, a court would likely examine the statement to which Mr. Flinn imputes malice rather more closely than he might like. Mr. Powell is not saying that WWE is in the pornography business. The present tense – “IS in the pornography business” – is important. The subject of the putative “malicious” sentence is also important. Nowhere in the column does Mr. Powell mention WWE. Therefore, Mr. Powell is not repeating “the false statement that WWE is in the pornography business.”

WWE, as others have pointed out, is in a process of transition, and its present rating falls on the non-pornographic side of pornography. The “entertainment” provided by WWE, like the side-shows of P. T. Barnum’s day, are intended to fool the foolish. Virtually all of the set-piecesin the WWE ring are highly scripted. The “Barnum effect” is an actual term used by professors of psychology in which students purposely are gulled into believing invalid results of psychological tests in ethics courses. Deceptions of this kind always involve ethical catches. But courts are not chiefly concerned with ethics: They are concerned with the veracity of charges.

And Mr. Powell, in the line adduced by Mr. Flinn as legally malicious, is making a statement about 1) Mrs. McMahon’s “practical qualifications for office” and 2) Mrs. McMahon’s wealth, which Mr. Powel conjectures “derived from the business of violence, pornography, and general raunch” -- nice distinctions that will be important to a court gathered to rule on the nature of Mr. Powell putative malice.

Of course the court must also decide whether Mr. Powell’s statement breeches the wall erected by other courts interested in preserving both the letter and the spirit of the First Amendment, which allows both Mr. Powell and Mr. Flinn a certain latitude of expression without which public speech would be matter decided through frivolous legal suits. Absent a presumption in favor of untrammeled speech, even masters of prose such as Honoré de Balzac, self-described as “a galley slave to pen and ink,” would not have been able to write without fear of prosecution the line: “the secret of great fortunes without apparent cause is a crime forgotten”.

The line above from Balzac introduces Mario Puzo’s Godfather, though it is there misquoted as: “Behind every great fortune lies a crime.”

Balzac’s statement is carefully qualified, the improvising somewhat reckless. Most galley slaves to pen and ink depend on courts to take note of such differences.