George Lilly, the Republican candidate for Colorado's First Congressional District, says on his website that he considers defense of the U.S. Constitution a "sacred oath."  But after he threatened a libel lawsuit against the Rocky Mountain Right ("RMR") blog, one wonders about his views on the First Amendment.

In a June 9, 2008, post, RMR editor Anthony Surace announced the blog's endorsement of George Lilly's rival in the Republican primary, Charles Crain.  Calling Lilly "no Republican," Surace claimed that Lilly was not sufficiently supporting the Republican ticket in Colorado.  Surace also asserted that Lilly's supporters "made clear they would not support [presumptive Republican presidential nominee] John McCain or [Republican candidate for the U.S. Senate] Bob Schaffer" in the coming elections, and that Lilly's presence on the ticket "could be disruptive enough to harm other Republican candidates running statewide."

This past weekend, Lilly emailed Surace, demanding that the offending post be removed and that RMR issue an apology.  In his email, which Surace posted on RMR, Lilly alleged that Surace had libelously misstated Lilly's support for Schaffer.

You have libeled me with your blog. I have contributed money to Bob Schaffer on two ocasions [sic] for his senatorial bid, and I have spoken well of him on many occasions and told people like Ryan Call (State Republican Legal Counsel for the Republican Party) as well as others, that I support Bob.  I have known Bob for close to twenty years, and I think he is an excellent person and legislator.  He is also friendly with Ron Paul, and thinks very highly of him as do I.  I recommend that you print an immediate retraction of your false allegations against me and issue an apology, or I will seek legal redress against you.

Lilly also wrote that he was sending copies of his email to his supporters.  Surace noted that the email included Surace's home address.

PolitickerCO.com, a news site for Colorado political insiders, reports that, ironically, Surace had deleted the offending post (which can still be viewed on Google's cache) a few hours before receiving Lilly's email, as Surace had become concerned by a news report that the candidate RMR had endorsed, Charles Crain, was apparently living in a homeless shelter.   As a result, Surace wrote that he would "take George Lilly at his word that he supports Bob Schaffer and donated to his campaign," and that he apologized "for any confusion over the issue."  Nonetheless, Surace criticized Lilly for threatening a frivolous lawsuit and noted several factual bases, including a video posted to YouTube by Lilly's campaign, that supported Surace's assertions.

Indeed, Lilly would have a tough time bringing a successful defamation suit against Surace. First, Lilly would have to show that Surace's statements were false. That doesn't look easy. Surace's saying that Lilly "is no Republican" comes across as an opinion, not a fact.  Although he doesn't go into detail in the original post, Surace's evidence in support of his position regarding Lilly's effect on the Republican ticket is defensible. Perhaps Surace's claim that Lilly launched "tirades" against the Schaffer campaign could be proven false, but this also looks like political hyperbole rather than fact, and Surace has a reasonable argument that the assertion was substantially true.

Further, Lilly would have trouble showing that he suffered any actual harm.  Certainly, he might have been offended by Surace's assertions, but there is nothing Surace wrote that is so egregious that a court would automatically assume harm to his reputation. And even if Lilly could show Surace made a false statement that harmed his reputation, Lilly would have to show "actual malice" on Surace part. Lilly, being a candidate for national office, is almost certainly a public figure, and thus he would have to show that Surace actually knew that what he wrote was false or recklessly disregarded its falsity. Even putting aside Surace's subsequent post, which indicates that he believed and still believes the statements to be true, the subjective and hyperbolic nature of Surace's original statements make this a daunting task. The comments certainly were no worse than the typical mudslinging Lilly is apt to see on the campaign trail.

In fact, Surace seems to have come to the same conclusion about Lilly's libel claim - he reissued his "libelous" blog post verbatim on Sunday, saying that Lilly's claim had "no legal standing."  Surace added that "Lilly should be ashamed of himself for thinking he could intimidate a political blogger with threats of legal action."

Will Lilly follow through on his legal threat?  He told PolitickerCO.com that he considered Surace's post containing the apology to be a retraction.  With Surace's reissue of the offending post, the situation may not yet be resolved.

You can follow further developments about Lilly's legal threat in our Legal Threats Database entry: Lilly v. Rocky Mountain Right. 

(Arthur Bright is a second-year law student at the Boston University School of Law and a CMLP Legal Intern.)