Grumpy Old Men

Want to criticize Jack Kelly during a political campaign? Be careful. He'll sue.

by Andrew Thompson

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[ great moments in political speech ]

It was, in the end, much ado about nothing.

But until you saw the pettiness of what was at stake in the defamation lawsuit that City Councilman Jack Kelly filed against one of his constituents in 2008, and which he lost Jan. 15, it's difficult to understand the magnitude of the frivolity at hand — on Kelly's part, on defendant Paul Corbett's part, and on the part of the Northeast Philadelphia voters who were, according to both the plaintiff and defendant, susceptible to even the most miniscule bit of homophobic propaganda. The alleged defamation was, after all, one little yellow flier (pictured above), a bit larger than an index card, placed on the windshields of some 5,000 cars in church parking lots in the Northeast ahead of the 2007 City Council election.

Sure, the flier used incendiary language. In excoriating Kelly for his 2007 vote, along with all but one other member of City Council, to oust the Boy Scouts of America from their rent-free headquarters because of the organization's anti-gay policies, Corbett claimed that Kelly's vote "promote[d] sodomy among our youth. Not too long ago this [vote] would have caused Jack Kelly to be tarred and feathered for contributing to the delinquency of minors." The de facto organization Corbett formed to distribute the fliers called itself "Citizens Opposed to Politicians Who Pander to Perverts." The reverse side of the flier cited a stanza by Alexander Pope admonishing that, "Vice is a monster of so frightful mien."

Mean-spirited? Perhaps. But, as they say, politics ain't beanbag, and most of the time, most politicians grin and bear it. After all, for a public official to win a defamation suit, he or she not only has to prove that the allegedly defamatory statement was inaccurate, and that the person making the statement knew it was inaccurate, but that it was done with malice — an intentional effort to inflict harm.

"There's no bar to a politician suing for defamation," says Mark Rahdert, a constitutional law professor at Temple University. "Just like any other individual, he or she can do so. The standard, however, is a pretty steep one." Consequently, most politicians let these things go. But Jack Kelly, 71, is not most politicians.

He only won re-election by 123 votes, and for that fact he blamed Corbett, an 80-year-old retired salesman and lifelong Northeast Catholic. So, on Sept. 12, 2008, he filed a lawsuit. That it eventually died at the hands of a jury isn't surprising, at least to anyone with a passing familiarity with defamation law. That a politician with such apparently thin skin could survive Philly politics for nearly 20 years — he served as an aide to Council Presidents John Street and Anna Verna from 1991 until his own election as a Republican at-large candidate in 2003 — is quite surprising indeed.

The crux of Kelly's case was that Corbett's campaign against him actually worked. In his closing argument Jan. 15, Kelly's attorney, David Heim, argued that Corbett wasn't just some moribund old man rattling off insanities on yellow fliers. This was, as Heims insisted with all the soft, understated outrage he could muster, "accusing the councilman of contributing toward crimes against children. "

The only person more eager than Kelly to say that Corbett's efforts mattered is Corbett himself. In an interview, he boasts that his anti-Kelly campaign very nearly cost the councilman his seat, one of two at-large seats guaranteed to Republicans in the City Charter. Initially, Election Day returns had Kelly down seven votes to newcomer David Oh, but a recount gave him his razor-thin victory.

"He would have won overwhelmingly by 100,000 votes if he listened to me," Corbett tells City Paper. He says he tried to schedule a meeting with Kelly before the fliers were distributed. But he refused to tell Kelly's secretary who he was, or what he wanted to talk about, and Kelly wouldn't meet with him. So, out the fliers went. "I did something every citizen has the right to do," he says.

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Why live life at full price?

Corbett's claim that he cost Kelly 100,000 votes is dubious. But in a close race, it is possible that Corbett tipped the scales in Oh's favor. But why did he target Kelly, instead of the 15 other Council members who voted the same way? "I [originally] voted for Kelly because he was a member of my parish" — they actually go to different parishes — "and a relative of his told me what a great guy he was. ... I used the rifle approach instead of the shotgun approach."

Since the rifle approach was so successful, Corbett says he'll do it again in 2011. "The next guy, the easiest, you go for the easiest target first, would be [Councilman Frank Rizzo Jr., the city's other at-large Republican]," he says. "It's not a political thing."

Indeed, to Corbett, his campaign was a defense of American virtue itself. As described in closing statements Jan. 15 by his attorney, Scott Shields, Corbett was a crusader in the vein of the founding fathers and William Penn: "It's ironic that this case arises here in Philadelphia, because this is the birthplace of freedom."

Eventually, Shields went beyond boilerplate First Amendment arguments to a near-endorsement of Corbett's homophobia, arguing that it took founding-father-level bravery for Corbett to accuse Kelly of backing the "homosexual lobby." Corbett was fighting for what was right in the face of the overbearing liberal establishment. And Corbett, frail and gray in his flannel shirt with oversized glasses, was effortlessly available for Shields to insert into some Norman Rockwell world. "You know why we have the problems we have today?" asked Shields. "No one speaks up. Everything goes! But not Mr. Corbett. Thank God for him!"

Jack Kelly, whose former chief of staff was sentenced in 2009 to four years in prison following a conviction on federal corruption charges, is not expected to seek re-election next year.

(andrew.thompson@citypaper.net)