Republican congressional candidate and onetime kung fu action star Chris Mitchum charged incumbent Congressmember Lois Capps — who beat Mitchum by fewer than 8,000 votes in last November’s election—took his words so violently out of context in TV and radio ads that they constituted defamation of character.
In legal papers distributed to the media this week, Mitchum charged that the offending ads “changed the outcome of the election in Capps’ favor.” Mitchum alleged he sustained “severe emotional shock and distress” as well as “embarrassment, humiliation, loss of employability, loss of future employability, and anguish.” Mitchum is also suing the Democratic Congressional Campaign Committee, which spent $99,000 to air the ads.
Mitchum took exception to the TV and radio spots in which he is quoted stating, “I do not intend to go to Washington, D.C., to represent the 24th District.” Had Capps quoted Mitchum completely, prospective voters would have heard him say, “I do not intend to go to Washington, D.C., to represent the 24th District to bring back baseball fields, that’s not why I am going. I am going to fight for my country, and I happen to be from the 24th District.”
Capps’s ads described Mitchum as “a Tea Party darling,” suggesting that if elected, he would represent the Tea Party on a host of issues rather than his constituents. By providing only a partial quote, Mitchum’s attorney Josh Lynn contends Mitchum was made to look like “a hypocrite and narrow-minded ‘Tea Party’ advocate,” and alternately, that “he would use the elected office for his own purposes not those of his district.”
Typically, the courts afford candidates extremely broad latitude in speaking critically of their opponents for fear of chilling political free speech and the robust exchange of views and information prior to an election.
For elected officials to prevail on defamation charges, they must prove that the statement was false and the person making it knew it was false at the time. As a rule, that’s a high burden of proof. Lynn insisted Capps crossed the line. “They took [Mitchum’s] statement, butchered it, changed the meaning of the words coming out of his mouth to say he wasn’t going to do his job,” Lynn said. “It’s not right.”
The ads proved controversial during the campaign itself. When they aired, both Capps and Mitchum had conducted polling that indicated the race was too close to call. Capps, accustomed to relatively easy victories during her 16 years in Congress, organized a last-minute push to rally the troops.
And for Capps, frequently voted “the nicest member of Congress” by Congressional staffers, the ads in question were uncharacteristically aggressive. Her campaign advisors insisted the ads were accurate because Mitchum, a conservative Republican, had repeatedly stated he was going to Washington to re-instill the original values of the founding fathers rather than bring home the proverbial bacon. Privately, some longtime Capps supporters found the ads hard to stomach.
Capps’s campaign consultant Bill Carrick issued a two-line response to the Mitchum lawsuit, stating that Capps had yet to be served with the claim and could not comment. He added, “But she is proud of the campaign she ran and is confident there is no validity to this frivolous lawsuit.”
Given the tradition of political mudslinging that’s long prevailed in the United States, Mitchum’s charges might seem a stretch. But Lynn contended that a recent court ruling — pitting ABC news reporter John Stossel against a minister preaching the gospel of prosperity — provided Mitchum a legal leg on which to stand.
In that case, Stossel accurately quoted the minister exclaiming over how rich he was. But Stossel failed to also disclose the minister was quoting a fictitious persona he devised to illustrate that even the wealthiest can be plagued by feelings of emptiness. Ultimately, ABC agreed to settle the case and issued a public apology. That case, however, involved a news broadcast. Courts have been more forgiving of the exaggeration, distortion, and outright deception that’s often part of campaign rhetoric.
Mitchum declined to speak about the emotional distress he claimed Capps “intentionally inflicted.” But in a written statement, he accused Capps of “brazen campaign improprieties,” and a “win-at-all costs approach” that has contributed to a “decline in American ideals.” In conclusion, he stated, “Mrs. Capps’ astounding, deliberate and blatant falsification of the truth renders her unacceptable as a public servant.”
Jessica Levinson, an attorney specializing in election law issues at Loyola Marymount, commented, “A lot of ads are sleazy. A lot of ads are misleading. But that’s not enough to qualify as the intentional infliction of emotional distress.” In such cases, she said, the judges want proof that the pain and suffering was intended. And she said many judges will require medical records indicating physical manifestation of the alleged distress, such as nausea, insomnia, or weight loss.