By admin 
Rep. Kevin Kiley’s campaign is unlikely to succeed in its effort to force a Sacramento television station to pull a political advertisement highlighting a past endorsement from President Donald Trump, according to a First Amendment expert.
Read more Sacramento spent $12M on 102-acre lot for development, now it plans to sell
Kiley’s campaign sent a cease-and-desist letter to ABC10 (KXTV) over the 30-second ad — titled “Duck” — on Monday. The ad, sponsored by a pro-science super political action committee backing former Democratic state Sen. Richard Pan, centers on Trump’s endorsement of Kiley in 2022, when the then-former president called Kiley a “MAGA Champion.”
Kiley, who left the Republican Party in March to register as “no party preference,” has distanced himself from Trump and the GOP over the last year as he tries to beat Pan in their Democratic-leaning 6th District race. Trump is not viewed favorably among the majority of Americans, according to dozens of polls, and expected to hurt Republicans across the country in their November races.
Kiley’s campaign has taken issue with a moment in the ad that states “President Donald Trump has endorsed Kevin Kiley in this race” which is accompanied by a graphic that reads: “Trump endorses Kevin Kiley.” The campaign has said these claims are false and defamatory, while demanding the news station stop airing the ad in its current form.
The legal arguments for such claims, however, are extremely flawed and would likely not hold up in the court, said David Loy, the legal director for the nonpartisan First Amendment Coalition.
“I don’t think that there is any argument that is at all strong to compel a takedown of the ad,” Loy said. “A defamation claim would be very, very weak here.”
Kiley’s campaign told The Sacramento Bee that it is considering suing but has not committed to any legal action.
Among the main hurdles for proving defamation against Kiley is that the campaign has raised concerns about a statement made by Trump — not Kiley — and it is true, Loy said. Trump endorsed Kiley in his 2022 campaign in California’s 3rd District.
“It’s not clear how it can defame Kevin Kiley to say that President Trump endorsed him because it doesn’t imply that Kevin Kiley did anything wrong or bad,” Loy said. “Obviously, he wants to put political distance between himself and Trump, for his own purposes, but that does not mean that the statement is defamatory.”
Even if the statement was false and defamatory, Loy noted that Kiley would face another obstacle in court.
Under a landmark 1964 U.S. Supreme Court decision, New York Times Co. v. Sullivan, Kiley is deemed a public official. That increases the standard of proof needed in any defamation case. He would need to prove “by clear and convincing evidence” that the statement “acted with reckless disregard for the truth,” Loy said.
» Election news in your inbox: Sign up for our election newsletter here
ABC 10 has not responded to multiple requests for comment asking if the news station planned to stop airing the ad.
Kiley’s campaign, in response to questions Wednesday, bashed Pan for “running a cynical campaign based on obvious lies.”
Read more Aiming to fight hunger and support farmers, new California legislative group forms
“The claims in the TV ad are false,” said Kiley spokesperson Alex McDonald in a statement. “Because the claims are false, they are defamatory, and the ad must be taken down. If Pan had any integrity, he would join us in calling for the ad to be taken down.”
Pan was not made available for an interview, but his spokesperson Daisy Stein referred The Bee to a written statement.
“He’s a Republican dressed up as an independent for this election,” Stein said. “Voters in CA-06 don’t want a charade, they want results.”
Who is behind the ‘Duck’ ad
In a post on X Thursday morning, Kiley called Pan’s attack ads “desperate,” “discredited by fact-checkers” and funded by a “New York billionaire.” His post is accompanied by a video that offers multiple critiques of Pan, including his support from 314 Action Fund, the super PAC who sponsored the “Duck” ad.
The PAC was founded in 2016 by entrepreneur and former Pennsylvania House candidate Shaughnessy Naughton to get more Democratic scientists and engineers to run for elective office. This year, the group is backing nearly 100 candidates across the nation including U.S. Senate candidate Abdul El-Sayed in Minnesota.
Erik Polyak, executive director for 314 Action and UC Davis graduate, said the group has been aware of Pan for years. Pan, who teaches public health at UC Davis, served in the California Legislature for 10 years and became well-known for pushing bills to crack down on school vaccine requirements.
“When the seat came up as Prop. 50 was being fought hard last fall. Dr. Pan was the first name on the call list for us,” Polyak said. “The first and really only name.”
The super PAC has raised roughly $18.9 million this election cycle, with $5.4 million coming from billionaire and former New York Mayor Mike Bloomberg. The average donation comes from individual contributions and is $17, said Polyak.
314 Action Fund has only contributed $5,000 directly to Pan’s campaign this year, though Polyak said it had spent about $2.5 million on ads for Pan thus far. The “Duck” ad, which is expected to run through Oct. 5, cost just more than $1 million.
The ad was an attempt to break through Sacramento’s crowded and expensive media market, Polyak said. It compares Kiley to a duck and seeks to tie him to Trump, saying: “If it walks like a duck, it’s a duck. Trump called Kevin Kiley a MAGA champion. … Now Kiley is pretending he’s independent, but he’s still Trump’s MAGA champion.”
“It really fit the message that we wanted to drive home here and, clearly, it’s put Kevin Kiley on the defensive,” Polyak said.
As of Thursday afternoon, and at nearly 60,000 views on YouTube, the ad is 314 Action Fund’s most watched ad of the election cycle.
Read more Legal expert doubts Kiley can force takedown of ‘Duck’ ad tying him to Trump