As the Florida governor’s race tightens, the focus has turned to a scathing and potentially pivotal Republican TV ad against Democratic gubernatorial candidate Andrew Gillum.
Gillum supporters want the ad to disappear, calling it false, offensive and despicable, especially since it first appeared as Florida’s Panhandle was bracing for massive Hurricane Michael.
Now a key question arises: Does the ad that references the “FBI,” “an “active criminal investigation” and “an ongoing corruption probe” constitute libel and defamation of a public official — meaning Gillum?
That’s what the Gillum for Governor campaign is claiming as it tries to get rid of the ad, using wording from a landmark legal case familiar to lawyers, Constitutional scholars and beginning journalism students alike.
On Thursday, the campaign sent letters to television stations, requesting that they “immediately cease and desist broadcasting” the ad — a potential precursor to a lawsuit.
“In short, the Advertisement constitutes libel and slander of the worst sort,” wrote attorney Glenn Burhans Jr., legal counsel for the Gillum campaign.
Meanwhile, the Republican Party said earlier that it was pulling the ad from areas affected by Hurricane Michael but would continue airing it elsewhere, setting up a showdown as the general election draws near and polls tighten.
Numerous questions loom: Will TV stations take down the ad? Would they be required to do so? Would the Gillum campaign really sue? And more importantly, will voters believe the ad is true or false?
The attack ad is at the crux of an issue that has followed Tallahassee Mayor Gillum both in the primary season and the general election — the FBI corruption investigation into city government.
Based on news accounts — particularly reporting done by the Tallahassee Democrat— the investigation involves undercover agents, trips outside of the state and country and other accusations.
No charges have been filed, and Gillum has said the FBI assured him that he has not been the focus of the investigation, which began in 2015, though the public was not aware of it until later.
But it’s not clear when the investigation will end – or an ongoing ethics complaint will come to some conclusion — and how it will play out as Gillum tries to become the next Florida governor.
Voters statewide may or may not know much about what has been going on with the Tallahassee investigation.
But if the campaign ad continues to air, voters will be able to watch a commercial that refers to Gillum and an investigation. Even a political novice would understand that kind of TV campaign ad would not be considered positive.
According to the Gillum campaign letter written to television stations, the ad is financed by the Republican Party of Florida. Republican gubernatorial candidate Ron DeSantis approved the ad, as did Dane Eagle and Byron Donalds, both state representatives in the Florida House.
The ad includes the following phrases and statements: “Andrew Gillum is running for governor, and also from the FBI;” “Andrew Gillum has ties to an active criminal investigation;” “More controversy concerning Tallahassee mayor Andrew Gillum,” and, “An ongoing corruption probe.”
Burhans Jr., the Gillum campaign’s legal counsel, wrote that the ad “is demonstrably false in numerous respects and has been made with actual malice within meaning of New York Times v. Sullivan.”
That 1964 case established an “actual malice” standard, saying a public official would have to prove that a publisher had knowledge that a statement was false but published it anyway.
Those can be tough cases to win, according to Lata Nott, executive director of the First Amendment Center at the Freedom Forum Institute in Washington, D.C.
And in election season, such cases are not common, Nott said, “because by the time the suit works its way through the court, the election is over.”
While a lawsuit has not been filed, the cease and desist letter to television stations stated:
“This letter shall serve as notice that any further publication or rebroadcast of the Advertisement by you will be intentional and made with actual knowledge of the maliciously false and defamatory statements contained therein. Mayor Andrew Gillum and the Gillum for Governor Campaign will take all available legal recourse to prevent the spread of the false and defamatory Advertisement.”
Meanwhile, the Gillum campaign has been gathering supporters who are critical of the negative ad.
Thursday, a group of former prosecutors railed on the Republicans’ ad against Gillum during a press call.
“To sit and have to watch on TV and to read statements unilaterally being made as legal conclusions that are factually incorrect without any recourse just shows how desperate and devolved the DeSantis campaign has become,” said Florida State Senator-Elect Jason Pizzo, a former assistant state attorney at the Miami-Dade State Attorney’s Office.
Andrew Warren, the Hillsborough County State Attorney and former federal prosecutor, said: “Congressman DeSantis is desperately grasping at straws. The advertisement is the same old dirty politics. It’s a baseless attack based on misleading information and outright lies.”
But when asked whether a court could force TV stations to drop the ad, Warren said, “I don’t think the courts are going to get involved … This is a question on the integrity of candidates, and running campaigns based on truth and policy and ideas rather than on false attacks.”