Authored by Jonathan Turley,

California gubernatorial candidate Tom Steyer has run on the slogan of “actions speak louder than words.”

It may now be time for him to prove it and bring a defamation action against opponent Katie Porter for her accusations that he engaged in dirty politics.

Porter used a CNN interview to accuse Steyer of finding and leaking the infamous video of her abusing a staffer and yelling “Get out of my f**king shot.”

Katie Porter’s campaign for governor has languished at around ten percent, even after the implosion of Eric Swalwell as the frontrunner among Democratic candidates. At times, she appears to be seeking to win by profanity rather than policies, holding up signs reading “F**k Trump” and other insults.

On CNN’s Inside Politics, however, Porter may have gone too far with her rhetoric. She told Dana Bash that it was Steyer who stabbed her in the back with the video:

“Well, given that Tom Steyer is the person who leaked the video with me and the staffer from five years ago, he pretty clearly wanted to be governor bad enough to knock me down to do it.”

Steyer’s campaign immediately denied the allegation, insisting (through spokesperson Sepi Esfahlani) “Tom has nothing to do with that video. This is an attempt from Katie Porter to deflect from her past mistakes. Katie Porter only has one person to blame for her standing in the race, and it’s herself.”

As for Bash, the host clearly wanted to set the network apart from Porter’s claims, stating at the end of the interview “I should note that we don’t have evidence that Steyer leaked that video of you. If you have it, please bring it.”

That evidence has not been forthcoming.

The question is whether Porter has produced a more viable defamation case than a political campaign.

At the outset, Steyer would face the higher burden as a public figure.

In New York Times v. Sullivan, the Supreme Court crafted the actual malice standard, requiring public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth.

The standard was later extended to public figures.  The Supreme Court has held that public figure status applies when  someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).

Steyer is a full public figure.

Yet, if Porter has no evidence of his connection to the videotape, this could satisfy either the actual malice or the reckless disregard elements.

However, is it defamatory to accuse a fellow politician of playing dirty?

The release of the videotape was not a criminal act and Porter does not suggest such a violation in her accusation. She is simply saying that Steyer will do most anything to win, including dirty tricks.

Richard Nixon, Hillary Clinton, and others have been accused of dirty tricks in politics. It is a standard accusation in politics.

Yet, Steyer has denied the allegation, so Porter is also effectively calling him a liar.

This is not a matter of opinion alone.

Certainly, Porter’s view of Steyer’s character and ambition is an opinion. However, whether he was the one who released the video is either true or it is not.

The Porter claim is meant to lower Steyer’s reputation with the public, though she can claim that all political battles are ultimately an attack on character, capability, or both.

The controversy touches on a sometimes subtle point of fact v. opinion.

The case reminds one of Mr. Chow of New York v. Ste. Jour Azur, 759 F.2d 219, (2d Cir. 1985), where a Chinese restaurant sued a food critic for a negative review. The reviewer made the following allegedly libelous comments:

(1) “It is impossible to have the basic condiments … on the table.”

(2) “The sweet and sour pork contained more dough … than meat.”

(3) “The green peppers … remained still frozen on the plate.”

(4) The rice was “soaking … in oil.”

(5) The Peking Duck “was made up of only one dish (instead of the traditional three).”

(6) The pancakes were “the thickness of a finger.”

The jury found for the restaurant and awarded $20,000 in compensatory and $5 in punitive damages. However, the court of appeals reversed, holding that the statements were protected as “opinion.” Notably, the statement about the Peking Duck came closest in the court’s view since it was a factual statement, but the court still found that it would not support the verdict due to the absence of malice:

Because of the absence of evidence showing either that Bridault or Millau knew that Peking Duck was not traditionally served as three dishes or that they subjectively entertained serious doubts about the accuracy of the statement that it is traditionally served in three dishes, we cannot say that the existence of malice has been established by clear and convincing evidence. Thus, this statement cannot support the judgment entered below.

Here, Porter claims that Steyer was the culprit behind the video release despite Steyer’s denials.

Generally, broadcast statements on the news are treated as libel as opposed to slander.

Steyer could even attempt to argue that this is a per se category of defamation by impugning his integrity. It is not necessary in California to allege an actual criminal act so long as the statement attacks the person’s integrity as to bring him into disrepute. Maher v. Devlin (1928) 203 Cal. 270, 275. This includes falsely charging a person with “a violation of confidence reposed in him or with treachery to his associates.” Dethlefsen v. Stull (1948) 86 Cal.App.2d 499, 502.

It is admittedly a close case and Porter could argue opinion defenses. Truth also remains a defense if Porter can do as Bash requested and bring the receipts for the allegation.

In the end, Steyer may not consider the powder worth the prize when it comes to Porter. It would, however, make for a more interesting case than the campaign of either candidate.