The Erie Reader's Official Response to Congressman Mike Kelly
Following his press conference on Friday, July 22
Photo by Jessica Hunter
July 25, 2022
Melanie A. Brewer
The Mike Kelly for Congress campaign
[U.S. postal address not provided]
Re: Your July 22, 2022 "Request to Remove" Email
Dear Ms. Brewer:
It is my understanding that on July 22, 2022 you sent an email to The Erie Reader, an independent newspaper in Erie, Pennsylvania, regarding a July 14, 2022 op-ed headlined "Erie at Large: A Congressman and a State Senator Walk Into a Bar" (hereinafter, the "Op-Ed"). I represent The Erie Reader in connection with this matter, and I am writing in response to your demand that it remove the Op-Ed for "misinformation and falsities" and "publicly apologize to the readers and to Congressman Mike Kelly."
For the reasons outlined below, The Erie Reader has no intention of complying with your baseless demand.
As an initial matter—and presumably because there is no ground for you to assert a valid claim of defamation arising from The Erie Reader's publication of the Op-Ed—your July 22 email vaguely references purported "misinformation and falsities" but fails to identify any specific fact stated in the Op-Ed that you allege is false and should be corrected. If there is a specific factual statement in the Op-Ed that the campaign asserts is false and that it seeks a correction of, please identify it immediately.
As is evident from the piece itself, the Op-Ed to which the campaign objects is an opinion. It is clearly labeled as such—with an "Opinion" tag in green font at the top of the post—and the identity of the author and his political affiliation is stated in the author note at the bottom of the post. Opinions, including statements of political opinion, based on widely known or disclosed facts, or that have no "provably false factual connotations[,]" are protected under the First Amendment. In addition, courts generally find statements that are clearly theoretical or speculative, such as openly "wondering" about another person's motives, to be protected opinion. See, e.g., Madison v. Frazier, 539 F.3d 646, 655 (7th Cir. 2008). Not only is the Op-Ed based on widely-known facts that have been extensively reported on by other news outlets,1it is also expressly based on information in legal filings and from official government proceedings, which allows The Erie Reader to invoke the fair report privilege. The fair report privilege protects fair and accurate reporting of information disclosed in an official public document, court proceeding, or public meeting, even if that information is false and defamatory. Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1981) (citing Restatement Second, Torts § 611); DeMary v. Latrobe Printing and Pub. Co., 2000 PA Super 339, 762 A.2d 758 (2000). The Op-Ed clearly and accurately attributes factual information stated therein to the Select Committee to Investigate the January 6 Attack on the United States Capitol and amicus filings, including the Brief Amicus Curiae of U.S. Rep. Mike Johnson at x (list of amicus curiae), Texas v. Pennsylvania, No. 20-155 (U.S. Dec. 10, 2020).
In addition, the U.S. Supreme Court has held that public officials, like Rep. Kelly, and other public figures, must meet an appropriately stringent standard under the First Amendment to state a cognizable claim for defamation. See N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) (public officials); Curtis Publ'g v. Butts, 388 U.S. 130 (1967) (public figures). To ensure breathing room for vigorous public debate and criticism of elected officials and other prominent figures, the First Amendment requires them to prove that the publisher or broadcaster acted with "actual malice" in publishing materially false, defamatory statements of fact. "Actual malice" in the libel context does not mean ill will; it means that the publisher either knew the challenged statements were false, or acted with reckless disregard for their truth or falsity. As discussed above, the material in the Op-Ed is based on widely-reported factual information found in official proceedings and court documents. While Rep. Kelly may not care for the criticism in the Op-Ed—which relates to a matter of utmost public interest and concern to Pennsylvanians—the First Amendment clearly protects it.
The First Amendment and the Pennsylvania Constitution provide robust protection for individuals and entities to gather, report, publish, and comment on accurate information that is a matter of public concern or significance. Snyder v. Phelps, 131 S.Ct. 1207, 1215 (U.S., 2011) ("'Speech on matters of public concern is at the heart of the First Amendment's protection'") (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–759 (1985); Connick v. Myers, 103 S.Ct. 1684, 1689 (U.S.,1983) (recognizing that speech becomes a matter of public concern when it relates to any matter of "political, social, or other concern to the community."). The Op-Ed falls squarely within the scope of those important constitutional protections.
Given the public interest in, and importance to the public, of the topics discussed in the Op-Ed, as well as the accurate factual basis for the piece, The Erie Reader rejects your July 22, 2022 demand that it remove the Op-Ed and "publicly apologize to the readers and to Congressman Mike Kelly."
/s/Paula Knudsen Burke
Paula Knudsen Burke
Local Legal Initiative Attorney
Reporters Committee for Freedom of the Press
PO Box 1328, Lancaster, PA 17608
1See, e.g., Hugo Lowell, January 6 hearings: if Republicans did nothing wrong, why were pardons sought?, The Guardian (June 26, 2022)