April 24, 2019 Ezra W.

Reese
Ereese@perkinscoie.com
D. +1.202.434.1616
F. +1.202.654.9109

Lamar Advertising Company

Attn: James McIlwain, General Counsel
5321 Corporate Blvd.
Baton Rouge, LA 70808

NRSC
425 2nd Street NE
Washington, DC 20002

VIA MAIL AND EMAIL

Re: Cease and Desist

To whom it may concern:

We serve as counsel to Captain Mark Kelly and Mark Kelly for Senate. Captain Kelly is a
retired U.S. Navy combat pilot and a current candidate for United States Senate in Arizona. On
or around April 22, 2019, Lamar Advertising and the NRSC published a billboard that contains a
false and defamatory statement about Captain Kelly. The billboard’s falsehood is injurious to
Mr. Kelly’s reputation and we demand that you immediately take it down.

Your billboard states, “Mark Kelly silent as 3,471,500 Arizonans would lose their private health
insurance.”1 The claim of the billboard is that Captain Kelly has refused to oppose the
elimination of private health insurance as part of a “Medicare for All” program. This statement
is false. The truth is that Captain Kelly spoke out on the public record before the billboard was
published to clearly say that he is against Medicare for All. These facts were public and were
available to Lamar Advertising at the time of publishing.

On April 15th, just days before you began displaying this billboard, Captain Kelly was asked in a
television interview if he supports Medicare for All and unequivocally said he does not, stating
“I am not in favor . . . for the hundred and fifty six million of us that get our health care through
our employer to . . . make that go away.”2 This statement aired on 12 News in the state of
Arizona; it was also quoted in other outlets. 12 News also published the interview and an
accompanying summary on its website which stated “Kelly, however, is not a supporter of

1
See https://www.azcentral.com/story/news/politics/arizona/2019/04/22/arizona-senate-candidate-mark-kelly-
targeted-billboard-attack-ad-along-10/3537053002/.
2
See https://www.12news.com/article/news/people-have-a-right-to-affordable-health-care-mark-kelly-says-in-1st-
live-interview/75-70c45f6b-b604-49fe-bfaf-bc1f3031f2c5.
Medicare for All, an idea from Vermont Sen. Bernie Sanders that has been tethered to the
Democratic party.” 3 The statement on the billboard to the contrary is undeniably false.

To prove defamation, a public figure must demonstrate that a false statement was made with
“actual malice,” meaning “with knowledge that it was false or with reckless disregard of whether
it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). The United
States Supreme Court has interpreted the Sullivan standard to hold that purposefully avoiding the
truth amounts to reckless disregard of the truth. See Harte-Hanks Commc'ns, Inc. v.
Connaughton, 491 U.S. 657, 692 (1989); see also Masson v. New Yorker Magazine, Inc., 960
F.2d 896, 900 (9th Cir. 1992).

In publishing the statement that Captain Kelly is silent on the issue of Medicare for All, the
NRSC and Lamar Advertising either knew the statement was false or purposefully avoided the
truth. The only way to determine whether or not a candidate for public office has been “silent”
on an issue is to find out whether the individual has made any statements on the public record
regarding that issue. If the NRSC or Lamar Advertising ran even a single Internet search,
they would have discovered the truth - that Mr. Kelly is not silent on the issue at all, but
rather is on the record on live television opposing Medicare for All. Therefore, either the
NRSC and Lamar Advertising knew the statement on the billboard was false when it was
published, or acted with reckless disregard for the truth by purposefully avoiding the truth and
intentionally not checking to see whether Mr. Kelly had taken a position on the issue.

Accordingly, the statement on the billboard is defamatory under a clear application of U.S.
Supreme Court precedent. We demand that it is immediately removed.

Please contact us immediately to confirm that you have complied with this demand.

Very truly yours,

Ezra W. Reese
Jacquelyn K. Lopez
Counsel to Mark Kelly & Mark Kelly for Senate

3
See id.