69 Am. U. L. Rev. 1541 (2020).

* David L. Hudson, Jr. is a First Amendment Fellow for the Freedom Forum Institute and a Justice Robert H. Jackson Fellow for the Foundation for Individual Rights in Education. He also serves as an assistant professor of law at Belmont University College of Law. He is the author, coauthor, or coeditor of more than forty books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and The Encyclopedia of the First Amendment (Sage, 2008) (coeditor).

Defamation cases often arise out of intemperate or offensive statements made in political campaigns. These comments may refer to a candidate’s criminal history, familial conduct, or other matters. Whatever the subject, emotions undoubtedly run high during hotly contested campaigns.

However, First Amendment protection is at its zenith when speakers engage in political speech, and speech about political candidates is inherently political speech. Thus, defamation suits arising out of political campaigns face significant hurdles, including (1) anti-SLAPP statutes and a greater public awareness of SLAPP suits; (2) a history and tradition of mudslinging and enhanced protection of political speech during political campaigns; and (3) the first-amendment-inspired doctrine of rhetorical hyperbole. This Article addresses these three obstacles.