Judge Donna Geck
Paul Wellman (file)

Judge Donna Geck rejected the defamation of character lawsuit filed by Republican congressional candidate Chris Mitchum against Lois Capps in which Mitchum alleged Capps so violently took his words out of context in a political TV advertisement that it distorted the truth of his actual position, cost him the election, and constituted the intentional infliction of emotional distress. Capps won the race for the 24th Congressional District by a 52-48 percent margin.

Congressional candidate Chris Mitchum watches for the next round of polling results on election night (Nov. 4, 2014)
Paul Wellman

Judge Geck ruled that Capps’s ad was protected under the rules governing political speech and that Mitchum failed to demonstrate “that the defendants made a materially false statement.” In addition, Geck ruled that the liberties the Capps campaign took with Mitchum’s remarks “did not materially change the meaning,” adding that “the ad is not necessarily unfavorable, depending on one’s view of the conservative agenda represented in the ad.” Geck took pains not to weigh in on the ads launched by either candidate against the other, but did comment, “The court does not opine on whether either party’s ads in the campaign were admirable or fair in their portrayal of their opponent or themselves. Sadly this is not the standard for a modern campaign in which even good people are not always at their best.”

At issue was a hit-piece the Capps campaign aired in the waning days of a surprisingly tight race that had grown way too close for her comfort level. In it, Capps lambasted Mitchum as a Tea Party Republican who would not represent the interests of the middle class. The ad included a snippet from an interview Mitchum conducted in 2012 with a student television reporter from California Polytechnic Institute in San Luis Obispo: “I do not intend to go to Washington to represent the 24th District.” Mitchum objected that his remarks had been strategically truncated in an intentionally misleading manner. Had Capps quoted him fairly, he argued, she would have included the entire sentence, which was, “I do not intend to go to Washington to represent the 24th District to bring back baseball fields.” (Emphasis added to highlight the difference.)

Lois Capps addresses a crowd of supporters at SOhO (Nov. 4, 2014)
Paul Wellman

Judge Geck found that Capps’s edited version did not do violence to the spirit of Mitchum’s remarks and cited his answer to the question, “How do you plan on representing the Central Coast if you are elected?” at considerable length. “Well in 1776, the guy who picked up his musket and his backpack and left his home, his job, and his family, and everything and went to Valley Forge to fight, he was not fighting to represent Camden, Delaware; he was fighting to save his country and to preserve liberty. I do not intend to go to Washington 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 come from the 24th District.” In this context, Geck ruled, “The gist of his [Mitchum’s] interview statement is that he was not proposing to go to Washington to acquire funding for local projects or ‘pork’ but to pursue a broader agenda for the benefit of the country as a whole.”

For Mitchum to have prevailed, he would have had to demonstrate Capps’s ads were not only false but maliciously so, meaning that she knew they were incorrect and ran them anyway. On both fronts, Geck found Mitchum failed. Mitchum’s attorney, Josh Lynn, explained he took the case to curb the rampant — and escalating — mud-slinging common to political campaigns. The defense proffered by Capps, her campaign, and the Democratic Congressional Central Committee was not just that her ad was accurate and protected by free speech, but that his lawsuit constituted such an assault on free speech that it could have an intimidating effect on political discourse. They cited California’s anti-SLAPP law (Strategic Lawsuit Against Public Participation), initially passed to limit the ability of those with means to use the court system to stifle free speech. To give the law teeth, the State Legislature allows those who prevail in anti-SLAPP actions to collect attorney’s fees from the losing party. Whether Capps will seek attorney’s fees yet has yet to be determined. Her press spokesperson Chris Meagher — a former Santa Barbara Independent reporter — stated only, “We are working with our attorneys to determine our next step in this case.”

Efforts to contact Mitchum’s attorney Josh Lynn have thus far been unsuccessful, but in other media reports, Lynn indicated he and Mitchum would evaluate their options.


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