The candidate for lieutenant governor claims the label “gay” is defamatory but court precedent has long protected anonymous critiques of politicians.
NORFOLK, Va. (CN) — A candidate for the Republican nomination in Virginia’s lieutenant governor race has asked a state judge to unmask whoever anonymously sent an unsigned text message to registered voters calling him gay.
In a lawsuit filed in Norfolk Circuit Court Tuesday, Republican Delegate Glenn Davis, who represents Virginia Beach, said a text message calling him a “gay Democrat” amounts to defamation. In a subpoena filed alongside the claim, he’s asking telecommunications company Onvoy, LLC, to share information that could identify the text’s author.
“This was an illegal text message with the intention of defaming me, to harm the campaign. It’s representative of what has happened to other candidates in the past. They think because there’s no disclaimer they can’t be held accountable and it has to stop,” said Davis in a phone interview before suggesting voters are looking for a return to “civility and fairness” in the campaign process.
Tim Anderson, the Virginia Beach attorney representing Davis, said in a statement that the claim the candidate is gay amounts to defamation under Virginia state law and such attacks have “no place in a modern day political race.”
The text accompanied a photo of Davis in a rainbow shirt from when he attended an LGBTQ Pride event. Davis’ district is home to one of the largest Pride events in the state: Hampton Roads Pride.
The candidate first acknowledged the text in a tweet last month.
Additional text from the offending message suggested he voted to allow “transgender men to be in girls’ bathrooms.” But Davis said his vote in support of the hinted-at bill would have allowed gender affirming policies but “doesn’t require those exact policies be adopted nor men allowed in girls locker rooms.”
The lawsuit comes days before about 54,000 Virginia Republicans will pick which candidate will run against the Democrats’ pick for lieutenant governor in November. The nature of the selection process — an unassembled convention that will end with ballots being collected and counted over a few days at a centralized location — makes knowing who’s in the lead nearly impossible.
But the text message also suggests Davis’ opponent, former Delegate Tim Hugo, is “the only conservative” running for lieutenant governor.
In an emailed statement, Hugo’s Campaign Manager Dustin Rhodes condemned the attack.
“It was wrong,” he said. “We hope the Davis campaign is able to find out who was behind it.”
No matter the outcome of Saturday’s election, Davis’ lawsuit raises interesting and complicated questions for free speech rights in the context of political campaigns.
Davis himself said the ad, which lacks campaign attribution required by state campaign finance laws, is a violation of state law, but the lawsuit does not make that link.
What it does do is aim to unmask the anonymous party who criticized Davis’ campaign.
“There’s a First Amendment right to speak anonymously generally, but state courts have struggled how to apply that right when it comes to internet speech,” said Andy Geronimo, the director of the First Amendment Clinic at Case Western School of Law. He noted state law might allow Davis’ suit to clear a few hurdles, but the core principle of revealing an anonymous speaker might be harder to overcome.
“You do have a right to speak anonymously and it’s a big deal to deanonymize someone because you want to sue them, especially when it implicates protected speech like it does in this case when it involves a political candidate or sitting politician,” he said.
Geronimo said some states have applied a standard developed by the New Jersey defamation suit Dendrite International v. Does, which created a high bar for claims against anonymous speakers. Under that case a plaintiff must essentially bring all proof of defamation, including actual malice, before speakers can be revealed.
Eric Segall, a law professor at Georgia State University’s College of Law, said the idea of protected anonymous speech in America dates all the way back to the founding fathers and the Federalist papers, when Alexander Hamilton and James Madison used the pseudonym Publius to support the ratification of the Constitution.
Segall said there are undoubtedly legal scholars who look to those early writings as grounds for essentially unlimited anonymous speech, including protections for what was said about Davis, but he admits he approaches the issue with a more progressive and modern view.
“Do we want the Koch brothers donating millions without us knowing it? What if an anonymous person is harassing a politician?” he asked, before stressing the most likely scenario where a judge might reveal a speaker is when a clear and present danger is presented.
“Is this a nuclear bomb? Calling a politican ‘gay’ is not,” he said.
Though not applicable in Virginia, New York State courts late last year found calling someone gay no longer counts as per se defamation, or defamation that damages someone’s reputation.
In her opinion, New York’s Appellate Division Second Department Judge Sheri Roman pointed to things like LGBTQ-inclusive anti-discrimination laws, and U.S. Supreme Court precedent on sodomy and same-sex marriage as evidence of how the “profound and notable transformation of cultural attitudes and governmental protective laws impacts our own consideration of stare decisis.”
But that’s New York, and Segall is less confident a judge in Virginia, where protections for LGBTQ employees were only enshrined into law last year, could view the label the same.
“To pierce the shield of anonymity because someone called someone gay, I’m not sure how the court would go,” he said. “It’s possible still, sadly, tragically.”
Segall also pointed to the U.S. Supreme Court’s decision in McIntyre v. Ohio Elections Commission, which could further complicate Davis’ effort. That case involved a protest of a new tax in campaign literature. While state law required credit lines for campaigns on such flyers, Margaret McIntyre signed hers “Concerned Parents and Tax Payers.”
“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent,” wrote Justice John Paul Stevens for the majority in 1995. “Anonymity is a shield from the tyranny of the majority.”
Still, Davis says he hopes the suit sets a new standard in politicking.
“I will stand up for anyone’s right to make anonymous critiques, it something we need to allow to exist, but there are limits on our First Amendment rights and this happens to be one of them,” he said. “We know about our forefathers calling each other hermaphrodites — mudslinging isn’t a 21st century thing. But it doesn’t mean it’s right.”
The candidate is also seeking $450,000 in damages against the Jane Doe defendant.