Defamation trial: Councilman Kelly's suit argues fliers hurt campaign; defendant claims free speech rights

Are political fliers, distributed just before an election, that accuse a city councilman of voting "with the homosexual lobby" to "promote sodomy to our youth," a statement of fact or opinion?

That's a question a Common Pleas Court jury will begin considering this morning when Councilman Jack Kelly's defamation lawsuit against Paul Corbett gets under way.

Corbett, 80, was incensed after Kelly and 15 other Council members voted in May 2007 to force the local Boy Scouts chapter to pay $200,000 per year or move off city-owned property it had rented for $1 per year since 1928. Council acted after deciding the Boy Scouts, who ban participation by homosexuals, were violating the city's anti-discrimination ordinance.

Corbett distributed the fliers at churches in Northeast Philadelphia just before the 2007 Republican primary election, using the name, "Citizens Opposed to Politicians who Pander to Perverts."

Kelly complains that the fliers endangered his effort to be re-elected to an at-large seat on Council. Kelly held off challenger David Oh by just 123 votes after a recount. He is suing to recoup money his campaign committee spent to counter the flyers and fight for the recount.

Corbett is defending his flier as protected free speech.

"We consider this a religious and moral issue, not a political issue," Corbett said yesterday.

Common Pleas Court Judge Albert Snite Jr. is more interested in a jury's view of whether Corbett was stating fact or opinion when he took on Kelly.

Snite yesterday denied a request from Corbett's attorney, Scott Shields, to prevent the flier from being used as evidence.

The flier read: "Councilman Jack Kelly voted with the homosexual lobby to remove the Boy Scouts from their city rent-free headquarters. The Scouts can remain only if they agree with the homosexual agenda which would promote sodomy to our youth."

Snite called that "going beyond simply an expression of opinion."

The flier went on the say: "Not too long ago this would have caused Jack Kelly to be tarred and feathered for contributing to the delinquency of minors."

Snite said Corbett came close to accusing Kelly of a crime.

Kelly's attorney, David Heim, submitted to the court a binder stuffed with campaign expenses, explaining that some are directly related to dealing with Corbett's flier. He cited $20,000 in legal fees that Kelly paid during the recount as just one example.

Snite noted that Kelly filed the lawsuit but the expenses were paid by his campaign committee, "Friends of Jack Kelly." That raised a question of who should collect potential damages in the case.

"If he's spending campaign money, I'm not so sure he's entitled to those damages," Snite said of Kelly.

Corbett didn't register his group as a political action committee. Kelly referred the case to then-District Attorney Lynne Abraham, but never heard back from her office, according to his chief of staff, John Cerrone.