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Mark Kelly files libel suit against conservative website's uncorroborated photo claim

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Democrat Mark Kelly

Democratic Senate candidate Mark Kelly is going to court over a conservative website’s uncorroborated claims — which he denies — that he dressed up as Adolf Hitler for a 1985 Halloween party at the Merchant Marine Academy.

The lawsuit claims that Flyover Media, which operates the website known as National File, knew when it posted the photo that Kelly was not the person in the picture dressed as the Nazi dictator. The website did not quote anyone verifying the image was of Kelly.

Kelly’s campaign furnished statements by classmates who back up the candidate’s denial, said his attorney on the lawsuit, Sarah Gosnki. But she said the operation decided to put up the photo and the claim anyway.

In a written response, a representative of National File said the story, which remains online, has been updated “to reflect Mark Kelly’s denial and his classmates’ comments on the record.”

Gonski linked the posting to efforts on behalf of the Senate Leadership Fund, which has spent tens of millions of dollars in attack ads urging Kelly’s defeat. That organization also gave $3.5 million to Defend Arizona, a separate political action committee working to keep Kelly’s opponent, appointed Republican Sen. Martha McSally, in office.

There was no immediate response from either of the GOP committees about whether they had a role in the posting.

No one from the Kelly campaign would explain why they decided to file a lawsuit that would only generate more publicity about the photo, which was not in general circulation.

In fact, the lawsuit does not seek a temporary restraining order to immediately remove the photo ahead of the general election, but only unspecified monetary damages and a prohibition against further publication of the photo and of the claim that the person pictured is Kelly. The defendants have 30 days to respond to the lawsuit, filed in Pima County Superior Court.

“Since they have refused to take it down, we are taking the necessary steps,” said Jacob Peters, spokesman for the Kelly campaign. “I have nothing more to add.”

At the heart of the litigation is a page from the 1986 yearbook from the U.S. Merchant Marine Academy, the year Kelly graduated. It details a Halloween party at Delano Hall where “midshipmen were required to come in costume or attend in their drab liberty attire.”

One photo features five people, including one student in sunglasses that Patrick Howley, a National File reporter, contends is Kelly.

“This is a lie, and defendants know it is a lie,” Gonski wrote. “Mr. Kelly never dressed as Hitler and does not even recall attending the event where the photograph was taken.”

She pointed out that the yearbook never identifies who is dressed up as Hitler or even says that Kelly is in any of the pictures with the person in the Hitler costume.

Gonski also said National File was provided with statements by not just Kelly’s campaign but also others who were attending the academy that the person in the picture is not Kelly.

And she said that both PolitiFact and, after doing their own independent investigations, both concluded there was no basis for the claim about Kelly.

PolitiFact said its own inquiry found one person, Ed McDonald, who said he had attended the party and that Kelly was not dressed as a Nazi. McDonald also was quoted as saying that the people in the photo were from the Second Company, different from Kelly’s company at the academy.

“The fact that defendants insist on continuing to publish the article ... despite confirmation that it is false from the Kelly campaign itself, numerous corroborating witnesses, and two independently conducted investigations, demonstrates actual malice and reckless disregard for the truth,” Gonski wrote.

That claim is crucial to Kelly prevailing in court.

Based on U.S. Supreme Court precedent, public figures cannot win libel cases based simply on the fact that something said or published was false. Instead, they have to prove “actual malice,” which generally means that publication was done even though the person doing it either knew that the statement was false or acted with reckless disregard for whether the statement was true or false.

Aside from the denials, Gonski said there are “clear visual indicia” that Kelly was not the man in the photo. That, she said, includes differences in the haircut and style, jawline and “other facial features.”

She said National Flyer decided to publish it anyway “because they knew it would generate attention and could devastate Mr. Kelly’s and the Kelly campaign’s chance in the upcoming election.”

The link to the Senate Leadership Fund is based on Gonski’s claim that Peter Lindsey, one of Kelly’s classmates, was contacted on Sept. 10, before the story was published, by Karim Addetia. Addetia sent a screenshot of the yearbook photo and asked Lindsey if the man was Kelly, Gonski said. She said Lindsey told Addetia that he “highly doubted” the man in the photo was Kelly.

Records at the Federal Elections Commission said that, at the time, Addetia was a consultant to the Senate Leadership Fund, Gonski said. She said Addetia and the Senate Leadership Fund communicated about the photos with National Flyer and Howley.

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