By Howard Fischer
Capitol Media Services
PHOENIX -- U.S. Senate hopeful Mark Kelly is going to court over uncorraborated claims by a web site that he dressed up as Nazi dictator Adolf Hitler for a 1985 party at the Merchant Marine Academy.
Legal papers filed in Pima County Superior Court claim that Flyover Media, which operates the site known as National File, knew when it posted the photos and a video on its website that the person in the picture was not Kelly. Attorney Sarah Gosnki said Kelly's campaign even furnished statements by those from his class who back the candidate's response.
But she said the operation decided to put up the photo and the claim anyway. And as of Wednesday it remained on the site.
In a written response, a spokesperson for National File said that 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 Martha McSally in office.
There was no immediate response from either of the GOP committees about their role in the posting.
But 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 legal papers do 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 the claim that the person pictured is Kelly. And the defendants have 30 days to respond.
"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 individuals, including one student in sunglasses that Patrick Howley, a National File reporter, identifies as 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 none of the pages in the yearbook ever identifies who is dressed up as Hitler or even says that it was Kelly in any of the pictures with the person in the Hitler costume.
Gonski also said that 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 FaceCheck.org, after doing their own independent investigations, both concluded there was no basis for the claim.
And 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 that of Kelly.
"The fact that defendants insist on continuing to publish the article and video, 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 the publication was made even though the person doing it either knew that the statements were false or acted with reckless disregard for whether the statement was true or false.
Aside from the denials, Gonski claims 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.''
But 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 who sent a screenshot of the yearbook photo and asked Lindsey if the man was Kelly. She said Lindsey told Addetia that he "highly doubted'' the man in the photo was Kelly.
Gonski said records at the Federal Elections Commission said that, at the time, Addetia was a consultant to the Senate Leadership Fund. And she said Addetia and the SLF communicated about the photos with National Flyer and Howley.