I have always been of the firm belief that the moment an activist movement or presence begins to be taken seriously is the moment at which it begins to be attacked. Therefore, the entire Innermost Parts community owes a big thank you to Andrew Brooks for validating our site and its mission.

Seriously, one would think that after failing to break 40% of the vote as an incumbent in a two-seat primary election in which you are one of two candidates, having your complaints about libel dismissed without punishment by a duly elected third-party elections commissioner, and going on to lose by 80 votes on the final ballot would be enough to convince you that your constituents have decided in a fair election that they want someone else doing your job. However, that would only be the case if you have any respect for the democratic process.

Unfortunately, former Senator Brooks seems to lack that respect, so before Noam Shuster can take her rightful place on the Brandeis Student Union, we will have to deal with the injunction Brooks filed with the Union Judiciary to have this election invalidated. It is my firm belief that this case has absolutely no merit and that Union Judicial precedent shows that there is no reason why this injunction should not have been dismissed immediately.

I would like to begin by trying to cite the actual text of the injunction or the Chief Justice’s response to it, but the Student Union website appears to have crashed. Unfortunately, this will also prevent me from referencing the Union Constitution, by-laws, or election rules, or the prior Judiciary cases on similar matters. Therefore, this post will only deal with what happened during the primary election; however, I will explore these other issues in more depth later today.

First, we need to get an accurate definition of ‘libel’. Unfortunately, I do not think the Union defines it for us, so I had to find an outside source that will do so. For this post, I will use the page on defamation, libel, and slander law from ExpertLaw.com, a leading online legal resource center. While I admit that the Union Judiciary is in no way governed by anything ExpertLaw says, I still think provides as objective a definition as anyone will be able to get for this case.

So what specifically makes a statement “libelous” or “slanderous” (the actual words used in the elections rules, according to this Google cached page accurate as of April 7th)?

Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.

Is a blog considered transitory or fixed? I have no idea. However, the point is they both refer to the same thing, defamation, and only differ in the way in which the defamatory comment is spread. Therefore, because the rules warn against both libel and slander, the question becomes ‘What constitutes defamation?’. While we already have a definition for it, we need to find out what exactly is necessary for a conviction.

Typically, the elements of a cause of action for defamation include:

  1. A false and defamatory statement concerning another;
  2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
  3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
  4. Damage to the plaintiff.

We can see that a libelous or slanderous statement is not merely one which Andrew Brooks claims is untrue. Rather, it is one that actively and through the negligence of the author defames him and is spread to an extent which causes him personal damage. Bearing this in mind, I will now examine the full text of the official complaint that Noam, Kaamila, Sahar, and I received from Nelson Rutrick, the outgoing Student Union Secretary and Chief of Elections, on April 15th, the day of the primary election:

Hey Noam, Kaamila, Sahar, and Adam,

I am writing to you on behalf of the elections commission in regards to elections violations which have occurred on the website ‘innermostparts.org.’

On this website there is a post by Sahar Massachi and another Adam Hughes which encourage voters to support Noam and Kaamila in the race for Senator-at-Large. There have been a large number of requests for these two write-in candidates to be disqualified for these two posts. As Chief of Elections, I have decided that the commission will neither mark Noam and Kaamila as ‘violators of a rule’ nor will I disqualify them from the race. Instead, I will give a warning to both candidates and their supporters that the elections commission is looking extremely closely at this election and will not hold back from disqualify or marking a candidate who does not abide by elections rules.

If you wish to continue using this website to comment on the election, make sure that you _double check the veracity of your claims_. Further false claims, considered ‘libelous’ by the elections commission, will be punished.

For example: The website claims that Justin Sulsky and Andrew Brooks are responsible for “Authoring and being the only two senators to vote for the ridiculously partisan American flag resolution.” – In reality, the resolution was not authored by Andrew Brooks.

Thank you, and please recognize that this is not an election governed by the rules of the United States, but rather it is one governed by the rules of the Student Union Elections Commission, and libelous statements will result in punishment.

Thanks,
Nelson Rutrick
Chief of Elections

This, then, is the official ruling of the elections commissioner, and it seems rather cut-and-dried to me. While I may contest the validity of some of what Mr. Rutrick says, I would not contest his authority to make a final, binding ruling on the matter and to determine what does or does not constitute ‘libelous’ or ‘slanderous’ and to hand out appropriate punishment. And, indeed, the Elections Rules would agree with me:

Violations

  1. The Chief of Elections reserves the right to treat all violations reported to elections@lists.brandeis.edu as official complaints.
  2. Should the Chief of Elections determine that a violation has occurred, he or she may impose any reasonable sanction(s) including but not limited to
    • A warning to correct the violation.
    • Loss of campaign privileges and materials.
    • Negative notations on ballots.
    • Disqualification.

Again, this seems very clear. Unless I’m missing something, the process went:

  1. Official complaints were made.
  2. The Chief of Elections received and considered them.
  3. He gave an official warning that the commission is examining the election closely and will not hesitate to take further action in the event of future non-compliance with the rules.

This is the exact process laid out in the rules. What, then is the problem? Notice that the only times that the word ‘libelous’ comes up in Mr. Rutrick’s e-mail are in reference to hypothetical future statements from the campaign. If we were definitively judged to have committed libel, we were never told about it, and even if such a judgment was passed, Mr. Rutrick dealt with it in the way he felt was appropriate. I don’t see where any injunction could be made.

As for the one statement that Nelson cited, I discuss it in this comment and explain why I think the misunderstanding was as a result of poor wording rather than any active untruth. However, even if you take the least forgiving interpretation of it, I still don’t see how it does any damage to Andrew Brooks’s reputation. This is a resolution that he voted and debated strongly for; does he really think that he lost the election because people mistakenly think he wrote it too? That is the only statement Rutrick told us he opposed; if there are any others, we never heard about them.

When the Student Union site is restored, I will address the Constitutional and Judicial aspects of this case and go into greater detail why this injunction has no leg to stand on. However, I think it should already be obvious that Andrew Brooks’s complaint is not about any injustice committed against him but is instead about using every resource possible to overturn the will of his constituents and hang onto as much power as he possibly can.

25 comments on “Libel”

  1. A New Reader's Perspective Says:

    I’m a new reader of the website and felt compelled to comment.

    Implying that there isn’t a respect for the democratic process affirms your lack of judgment in this matter. According to article ix of the union constitution, each candidate has a constitutional right to appeal decisions made by the chief of elections. It’s part of the system of checks and balances within the union that another branch (the uj) has the authority to overrule the chief of elections. This right to appeal has been exercised by many past Brandeis students who felt the elections process was unfair. This is part of the democratic process…remember Bush v. Gore in 2000 when Gore took his case to the supreme court due to reasons he felt skewed the vote in florida? Letting this appeal process go through is a part of democracy and our rights as students, not an attack on it.

    Secondly, how can you comment on this case when you don’t know all the facts? It’s clear that Brooks felt there were violations of the elections rules that weren’t acted upon by the chief, some violations that probably had nothing to do with you or this website. Thus, you probably don’t even know about half the violations or even if they had to do with libel or slander.

    Your comments at the end are presumptuous and offend my conscience. Brooks seems to believe there were injustices committed against him and is seeking an appeal. Stop trying to assume his intentions of hanging “onto as much power as he possibly can”. Such mean-spiritedness will get you nowhere.

    The UJ clearly agreed with the merits of Brooks’ injunction and felt compelled to stop the swearing in until the election dispute is resolved. They have more access to all the facts than we do, and they wouldn’t make such a ruling without justification.

  2. Fed Up Says:

    This kind of writing by third parties is what got Noam in trouble in the first place. If you truley support her, you should keep your mouth shut and stop giving Andrew Brooks more ammo.

  3. Adam Hughes Says:

    New Reader — As I said, I will cover the Constitutional arguments as soon as the Union website becomes available. I will only say now that I believe (based on prior study that the Constitution, by-laws, and particularly previous Judicial rulings) that there is still no merit to the injunction. How can I comment? I know from the people who were actually there (Lev and Loki in a previous post) that “Brooks is accusing Shuster and her campaign of slandering Brooks on this website and possibly elsewhere”. I think that’s enough to start defending the writing that, after all, I am responsible for.

    Fed Up — Instead of trying to silence debate, can you explain exactly what I wrote in this post that has any impact on the case? I am not libeling, and the campaign is over in any case, which means this speech doesn’t fall under the campaign rules.

  4. Loki Says:

    I’m not sure that we need to give this quite as much scrutiny and converage as we do. This is not some intricate constitutional case that requires intense analysis – the rules are plainly stated, and I think that once read they make it clear to decide if any violations occurred. We can leave it up to the UJ without much furor to make its decisions in as clear-cut a case as this one.

  5. A New Reader's Perspective Says:

    Again, you are saying there is no merit to the injunction, even though you haven’t even seen it yet. We don’t know what it says, and we don’t know all the facts presented surrounding this matter. So I repeat, you are in no position to judge until you know ALL the facts in the case. As someone who considers myself to be a member of the progressive community, I am embarrassed by your conduct and immature manner. This case is not about you, so stop trying to make it that way.

  6. Adam Hughes Says:

    Loki — Even if the rules are stated, I feel their interpretation is particularly important, and I’m trying to provide proper context. I agree, however, that it’ll be much easier when we can put this behind us.

    New Reader — Again, we know that the commentary on Innermost Parts is in the injunction. I feel that the inclusion of this settled matter signifies a fatal flaw in the suit, and I don’t see why I shouldn’t be allowed to express this. As for your personal commentary, I think you forfeit all rights to complain about the level of the dialogue when in the space of two comments you refer to me as lacking in judgment, presumptuous, offensive, mean-spirited, embarrassing, and immature (and implying a lot more). Your comments seem utterly hypocritical.

    By the way, as a self-proclaimed progressive, how do you defend holding up Bush v. Gore as a model of the democratic process. My fear is that this election becomes Bush v. Gore, with the rightful winner being robbed by the courts. Yet you seem to think this is an ideal comparison.

  7. Lev Says:

    I agree with Alex, the UJ’s going to rule in the next few hours and what we say on this blog isn’t going to effect anything really. Noam has a lot of support from people within the Student Union and I presume she’s putting together a strong case for herself.

    I’ve made my comments about the issue in the previous posting.

    I do agree with the new reader on one point, that the writing about this is very mean-spirited. I’ve said a few times on this blog before that I don’t think Brooks is a bad or immoral guy. The reality is that if we were in his shoes, we’d probably do the same.

    I personally felt that the elections commission operated pretty badly this round (I had my complaints, though all in all I suppose things went fairly well). Does Brooks have a case (based on my understanding of it)? I don’t think so (I’ve said so in my previous comments).

    In a few hours this probably won’t matter.

  8. Louis Brandeis Says:

    This whole process is completely pointless. Even if they have to do another election, Brooks won’t win. You can’t change people’s memories, and it just looks like he’s being a sore loser.

    It is in his and the Student Union’s best interests to kill this thing before it gets ridiculous. Oh wait, it already has.

    What a year for our Brandeis Student Union. The amount of drama and bickering and lack of any actual advocacy just astounds me.

  9. Nelson Rutrick Says:

    I hate anonymity more than I hate campaign finance reform, but I will still do my best to respond:

    I encouraged any candidate who disagreed with my decision to contact uj@lists.brandeis.edu and to appeal it. The Chief of Elections has too much power in the Student Union and, logically, there should be a check on what he can do – that check is the five elected members of the UJ.

    Just to clarify for anyone outside of the Union -> whatever the UJ decides, it almost definitely wouldn’t have a new election. Noam is either going to be the senator because she didn’t violate any rules, or Andrew is going to be the senator because she did, and I didn’t disqualify her for doing so.

    PS -> I shiver when I see typos in my own writing. I also shiver when children/students my age refer to me as ‘Mr. Rutrick’

    Keep it real.

  10. Loki Says:

    Nelson –

    The only thing the UJ can really do is hold a new election. The Union Constitution states

    The Union Judiciary may order an election to be re-run if it finds that the Constitution or other elections rules have been violated so as to unfairly impact the campaign of one or more candidates…

    To merely disqualify a candidate would not be in keeping with the constitution.

  11. Sahar Says:

    So Andrew Brooks is going to the highest court (and only court) in the Brandeis Student Union in his continued effort to be crowned Senator at Large. Huh. And he’s trying to drag us into this fight. Well, OK. Adam is upset. Some people think Adam shouldn’t be so upset. What do I think? Glad you asked.

    Andrew is, of course, entitled to appeal to the Union Judiciary. That’s his right as a candidate.

    Adam is, of course, entitled to feel upset about this. He really believes that Noam is a great candidate who won fair and square. He doesn’t think that Andrew has a leg to stand on, and he’s expressing that perspective.

    One thing that I think people are missing here is that Noam won because a great deal of people voted for her. Andrew may be trying to make us part of the story, but the real story is the grassroots campaign that Noam successfully executed.

    I think a reason many people are upset at Brooks right now is that if Brooks were not an incumbent, he probably wouldn’t be acting this way. Now, I don’t claim to presume to be able to read his mind. However, there is an anti-incumbent mood around campus, and now Andrew is using his incumbents know-how (not to say that non-incumbents couldn’t find out how to do what he did) to try and thwart a legitimate election.

  12. The Facts Says:

    Sahar, I think it’s important to point out that the case can only be against the chief of elections, Nelson Rutrick, and will not be against Noam or her campaign team or people who write on this blog. So you aren’t being dragged into anything, as you will not be defendants in the case (according to article ix, section 7 of the union constitution).

    I’d also like to point out that “anti-incumbent mood” is simply not an accurate portrayal of the campus feelings. Jason Gray, Mike Kerns, Justin Sulsky, Kamarin Lee, Rebecca Wilkof, Max Wallach, Tia Chatterjee, Sung Lo Yoon, Eric Alterman, Jordan Rothman, Rachel Graham Kagan, Julia Sferlazzo and many others are all people who have been involved in the union for at least a full year and who have been re-elected to their old positions or elected to new ones. A clear majority of the people in Union are “incumbents”, so the fact that they were elected shows that this had nothing to do with an “anti-incumbent mood”.

  13. Sahar Says:

    Thats a good point. Perhaps anti-incumbent is the wong phrase here. Anti-Union, maybe? I don’t know about you but most everyone I talked to was upset at the actions (or lack thereof) of the Student Union of 07-08

  14. Lev Says:

    Anti-Union might be the right word indeed. But certainly ‘anti-incumbent’ is reflected (at least a little) in the election results. The Presidential Race was very close this year, and I think a lot of people were supporting Kang because of his ‘outsiderness.’

  15. New point of View Says:

    It is a misrepresentation to classify Noam’s Campaign as anti-union when she had the face of the Student union itself for 2007-2008, Shreeya Sinha backing Noam for her race. This is an endorsement that Brooks did not receive. In fact during this past year Brooks has been more of an Dissenting voice in the union than a representative of its failures.

  16. Lev Says:

    Her campaign definitely wasn’t anti-union. But a lot of her supporters certainly were, and voted for her because they believed she represented a change.

  17. Alex N Says:

    New Reader: I’d just like to take a moment to correct your presentation of Bush v. Gore. Gore did not “take his case” to the Supreme Court in order to correct an injustice. Bush took the case to the Supreme Court in order to stop the recount that was already going on. So I would agree with your parallel. This is exactly like Bush v. Gore: a candidate attempting to circumvent the democratic process using the courts.

  18. Truth Says:

    Lev, a lot of Noam’s supporters were people that were heavily involved in Union and disliked Brooks because he disagreed with them on various issues. Brooks was anti-establishment in that he was usually one of the few dissenting voices in the Senate, asked tough questions of the E-board, successfully fought for e-board financial transparency (which the many eboarders didn’t want), and stood up against wasteful spending in the union budget.

    I don’t think it’s fair to characterize him as the status quo when he was questioning the ineffective policies of the e-board and did a lot of work to bring about more government transparency.

    The people who supported Noam were Union insiders and members of the political machine which has dominated the last 4 presidential elections (i.e. people who elected allison, shreeya and jason). The status quo won this election, not real change.

  19. Gideon Klionsky Says:

    “Truth” makes a very good point.

  20. Ollie the Owl Says:

    Hmmmm truth seems to be on to something…

  21. Lev Says:

    The poster calling themselves Truth, is probably someone very involved in the Student Union. A lot of people in the Union have this self-important attitude that they’re more powerful than other people at Brandeis, simply because they hold cool, fancy titles. The reality is that Union officials certainly compose a pretty small number of the voting electorate at Brandeis. Do you really think all 447 people who voted for Noam were Union insiders and part of the “machine?” Hardly. Not to mention, as far as I know, Noam’s write-in campaign was run pretty much entirely by non-Union members completely not connected with the “machine.”

    As for Brooks’ campaigning against wasteful spending. It seems pretty silly to me. The Union only spent 64% of its money this year; which as Choon pointed out, is a really dreadful rate. It seems like one (just one reason, not the only reason) of the reasons why we have all this rollover money is because of these ‘campaigns’ against wasteful spending. Very fiscally irresponsible.

  22. Nelson Rutrick Says:

    Andrew Brooks’ conservatism is not the reason why we _still_ have rollover, the FBoard and the Executive Board is. Forcing people to give detailed reasons for why they are requesting thousands of dollars from the student union is not a bad thing.

    Bush v. Gore was brought to the courts by Gore, not Bush, asking that the Florida Supreme Court overrule Katherine Harris’ certification of W as the winner of Florida and to order a recount. Bush simply appealed their ruling to the U.S.S.C after the FSC decided on it.

  23. Sahar Says:

    I think we’ve exhausted the usefulness of a Bush v Gore analogy here.

    On a similar note, I think we’ve exhausted the “machine” metaphor. Political Machines are mechanisms by which elected officials use patronage (or, less commonly public spending) to buy the favor of loyalists. There are no political machines at Brandeis.

  24. Alex N Says:

    Oh, Sahar, didn’t I tell you? I bought the election for Noam.

    I had left-over points.

  25. Lev Says:

    Too bad points don’t roll-over after the year ends…

    I actually agree with you Nelson. Brooks’ conservatism isn’t the reason why we have roll-over. But it seems ridiculous for someone to be claiming that campaigning against ‘wasteful spending’ was a good thing in a year when the Student Union just didn’t spend enough money.