Metropolitan News-Enterprise


Friday, January 25, 2019


Page 1


Court of Appeal:

Anti-SLAPP Motion Was Properly Granted in Issa’s Action Over Campaign Commercials

Opinion Says Fake Headlines Reflected Actual Content of Articles; Former Congressman Failed to Show False Factual Statements


By a MetNews Staff Writer


Above is a still from a television campaign commercial that first aired on September 20, 2016. The headlines did not actually appear in the New York Times.


Former U.S Rep. Darrell Issa, recently nominated as director of the U.S. Trade and Development Agency, yesterday lost his challenge before the Fourth District Court of Appeal to an anti-SLAPP motion granted to his 2016 election opponent whom he sued for libel over two television commercials which depicted fake headlines in the New York Times.

Justice Cynthia Aaron of Div. One declared that Issa failed to show “demonstrably false statements of fact.”

The nine-term Republican sued his 2016 Democratic rival, Doug Applegate, as well as Applegate’s campaign, alleging two television commercials were false and defamatory. Issa won the election that year by a margin of 1,621 votes, half of a percent of the total number cast.

San Diego Superior Court Judge Richard E.L. Strauss granted the defendants’ anti-SLAPP motion. In her op[inion affirming that action, Aaron said:

“In resolving this appeal, we must bear in mind the political context in which the advertisements at issue were published and the extraordinary degree of protection accorded to political speech, including political advertising, in our free society.”

Allegedly Defamatory Advertisements

One of the commercials first ran on television on Sep. 20, 2016. It depicted a copy of a New York Times article, with a headline, which did not appear in the newspaper, proclaiming:


“Games the system to line his own pockets.”

A smaller headline below (known as a “deck”) read:

“Rep. Issa has secured millions of dollars in Congress earmarks for roadwork to the many properties he owns.”

The actual headline read, “A Businessman in Congress Helps His District and Himself.”

Issa argued that by “juxtaposing an image...that purport[s] to represent the Article[] with the statements identified...above, the 9/20 Advertisement falsely and misleadingly leads viewers to believe that [certain] statements [presented on the screen] are quoted from an article in The New York Times,” though the doctored headlines were not in the actual article.

The second commercial, first aired on Oct. 4, 2016, uses images of the Sept. 11, 2001, terror attacks along with what his complaint describes as “misleading statements about Congressman Issa’s voting record, and a doctored quote to wage the dishonest charge that Congressman Issa has opposed supporting the victims, first responders, and heroes of September 11th.”

The Article’s ‘Gist’

Aaron wrote:

“We conclude that the statement that ‘Issa [g]amed the system to line his own pockets’ is not provably false,” noting that it “appears to be a fair summary of the gist” of the article, and that “Issa has not challenged the basic premise of the Article published by The New York Times nor has he demonstrated, apart from three minor corrections that the New York Times published with respect to the Article, that the corrected Article contains falsehoods.”

She added:

“According to the Article, ‘it is sometimes difficult to separate the business of Congress from the business of Darrell Issa.’ In this regard, the Article states that as Issa’s ‘private wealth and public power have grown, so too has the overlap between his private and business lives, with at least some of the congressman’s government actions helping to make a rich man even richer.’ In addition, the Article states that, according to Issa’s financial filings, his ‘minimum wealth doubled in the last year, and he appears flush with cash.’

“In view of the content of the Article, a charge by Applegate, Issa’s political opponent, that Issa has used his position in Congress to improve his own financial standing, is well within the range of fair commentary—which includes ‘[h]yperbole, distortion, invective, and tirades’…—that is permissible with respect to a political rival.”

Other Statements

The jurist noted that the other supposedly defamatory statements were similarly not provably false. She said:

“With respect to the contention that the statement ‘Rep. Issa has secured millions of dollars in Congress earmarks for roadwork to the many properties he owns,’ we conclude that this statement is not provably false. There is support for such a statement in the Article on which the 9/20 advertisement is based. Indeed, the entire thrust of the Article is that Issa has voted in favor of earmarks for infrastructure projects located within five miles of numerous properties that he owns.”

Turning to the Oct. 4 commercial, she said:

“As Issa complains, the narrator of the 10/4 advertisement says at one point, ‘Issa said he’d done enough for something that was simply a plane crash.’ ”

She added:

“Issa complains that it is ‘undisputed that Congressman Issa never said that he’d done enough for something that was simply a plane crash.’ That assertion appears to be correct….Considered in the context in which the statement was made, we cannot conclude that the suggestion that Issa uttered the words ‘simply a plane crash’ conveys a meaning that is materially different from the actual words he uttered, which included the comment that the 9/11 damages were caused by something that ‘simply was an aircraft.’ ”

Quotation Not Implied

Aaron also rejected Issa’s contention that the statements in the headlines, as used in the commercials, conveyed that each was a direct quote from the article. She again noted that the “gist or sting” of a statement is all that need be true under the law for a statement to not be false in the defamation context.

She explained:

“In applying these principles to Issa’s contention that the 9/20 advertisement suggested to viewers that The New York Times made the statement ‘Issa [g]amed the system to line his own pockets,’ it is clear that the 9/20 advertisement did not actually state that The New York Times made the challenged statements, nor did it use quotation marks around the statement, which would indicate to a viewer that the statements were in fact made by The New York Times.”

The case is Issa v. Applegate, 2019 S.O.S. 407.


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