First Amendment Coalition » anti-SLAPP law

California court rules talk show commentator shielded from libel under fair report privilege

donal brown — Tue, 07 Jun 2011 18:38:25 +0000

A California court of appeals ruled that when a talk show commentator reported that a former high school principal used school resources to sell ads for a gay magazine, he was exempt from libel charges under a state laws that protects journalists reporting on government matters.

The former principal had had earlier lost a ruling in trial court on his claim under the anti-SLAPP law. The appeals court also found that the principal was a public figure and the matter was of concern to the public. -db

From The Reporters Committee for Freedom of the Press, June 6, 2011, by Aaron Mackey.

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Dentist loses defamation case must pay Yelp and reviewers for legal fees

donal brown — Thu, 19 May 2011 18:28:21 +0000

A California dentist, who sued Yelp and reviewers for a bad review concerning a filling the dentist put into the mouth of the reviewers’ six-year-old son, must pay court costs according to a ruling in district court.

A California appellate court ruled last year that Yelp could not be held for defamation because the post was protected under the state’s anti-SLAPP law that protects public discussion of important issues, in this case the presence of mercury in fillings. -db

From MediaPost, May 16, 2011, by Wendy Davis.

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Federal court rules for blogger in anti-SLAPP case

donal brown — Tue, 22 Mar 2011 18:24:47 +0000

A bogger complaining about the Sedgwick Claims Management Services won a ruling in federal court upholding his free speech rights.

Writing about the case in his law blog, Eric Goldman says, “The district court properly dismissed Sedgwick’s defamation and trade libel claims under California’s anti-SLAPP statute because defendant Delsman’s conduct was in furtherance of his free speech rights in connection with an issue of public interest, and Sedgwick did not meet its burden of establishing a probability of prevailing on its claims.” -db

From a commentary in the Technology & Marketing Law Blog, March 21, 2011, by Eric Goldman.

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CA Appeals Court: free Internet porn isn’t unfair competition to pay porn sites

Peter Scheer — Thu, 03 Feb 2011 20:19:29 +0000

Bright Imperial Limited of Hong Kong, which operates paid pornography sites with streaming X-rated video, filed suit in California against Redtube.com, a competing porn business that does not charge users for access. The suit claimed Redtube’s free porn sites were hurting Bright Imperial’s business and constitute “unfair competition” under California’s Unfair Practices Act.

As reported by Ars Technica, the complaint charged that:

“. . . ubiquitous distribution of free adult videos through redtube.com has had a massive negative impact on the business model of adult website proprietors. . . . Now that consumers have the ability to watch high quality adult videos for free on redtube.com, fewer are making the choice to pay other adult website proprietors for the same content.”

The California Appeals court dismissed the case under the state’s anti-SLAPP statute, which is designed to cut short lawsuits that infringe on free speech.-PS

-From February 2, 2011 edition of Ars Technica

-Full Story

Californai judge rules that ratings by bond-rating companies are protected speech

donal brown — Tue, 14 Dec 2010 19:59:39 +0000

A California judge ruled that what was alleged to be “wildly inaccurate” ratings by Moody’s, Fitch, S&P were protected speech and insulated by the state’s anti-SLAPP law. -db

Bloomberg BusinessWeek
December 11, 2010
By Karen Gullo

Ratings by Moody’s Investors Service Inc., Standard & Poor’s and Fitch Ratings Ltd. described as “wildly inaccurate” in a $1 billion lawsuit are protected speech, a California judge said in a tentative ruling.

Judge Richard Kramer in San Francisco state court said yesterday that the companies’ ratings of three structured investment vehicles that the California Public Employees’ Retirement System lost money on are a form of speech about an issue of public interest that is protected under a state law designed to fend off cases meant to chill public debate.

The law aims to protect “good guys” trying to exercise free speech from their adversaries who seek to quell the speech by filing meritless lawsuits, Kramer said.

“There is a public interest in the country’s economy and the types of investment opportunities that exist,” Kramer said at a hearing yesterday. “They are potentially good guys here.”

Calpers sued the three bond-rating companies in July 2009 for losses it said were caused by their “wildly inaccurate” risk assessments on three structured investment vehicles. The so-called SIVs, after receiving the companies’ highest ratings in 2006, collapsed in 2007 and 2008, according the Calpers complaint.

Anti-SLAPP

Moody’s and the two other ratings companies are seeking to have the case dismissed under California’s anti-SLAPP statute. The 1992 law was passed in California in response to lawsuits filed by real estate developers and other businesses against people opposing their projects. SLAPP stands for “strategic lawsuits against public participation.”

The ruling doesn’t end the case, Kramer said. Calpers, the largest U.S. pension fund, can attempt to show that it’s likely to win on the merits of its lawsuit. In May he rejected the ratings companies’ request to dismiss the case, saying that the issuance of SIV ratings isn’t a matter of public concern but an “economic activity designed for the limited purpose of making money” that isn’t protected by the First Amendment.

Kramer said that his earlier rulings “have absolutely nothing to do with this hearing.” The earlier ruling on dismissal didn’t take into account whether the ratings were protected speech under the terms of the anti-SLAPP law.

The companies all gave their highest ratings to Cheyne Finance LLC, Stanfield Victoria Funding LLC and Sigma Finance Inc., prompting Calpers to invest $1.3 billion in them in 2006, the fund said in its complaint.

Specific Buyers

The SIVs, unregistered securities, could only be sold to specific classes of buyers. The assets underlying the SIVs were known only to the SIVs and the ratings companies, which published the ratings in offering materials, on their websites for a brief period and on private financial reporting services, the Calpers complaint said. The underlying assets of the three SIVs consisted primarily of risky subprime mortgages, the complaint said.

Joseph Tabacco, an attorney for Calpers, told Kramer that the ratings companies were working “hand and glove” with clients who structured the SIVs and couldn’t have sold them to investors without ratings.

Kramer said it doesn’t matter that there was limited dissemination of the ratings to select investors who could buy them. He said that making predictions about the economic performance of investment vehicles is protected speech and it’s up to Calpers to show that its claims have substance.

‘Doesn’t Shelter Behavior’

The anti-SLAPP law “doesn’t shelter behavior,” said Kramer. Calpers can now seek information from the ratings companies to back up its claims, he said.

Tabacco said Calpers would examine its options and expects to prevail.

“We are happy that once the judge had the opportunity to look beyond the plaintiff’s bare allegations, he reaffirmed that ratings are a form of protected speech,” said Michael Adler, a spokesman for Moody’s in New York.

“We are very pleased with this decision, which reaffirms the long-held precedent that credit opinions be regarded as protected speech,” Daniel Noonan, a Fitch spokesman, said in an e-mail.

Edward Sweeney, an S&P spokesman, didn’t immediately return a call.

The case is Calpers v. Moody’s, 09-490241, Superior Court of California, County of San Francisco.

With assistance from Christine Richard in New York. Editors: John Pickering, Peter Blumberg

Filmmakers win defamation suit brought by Dole

donal brown — Tue, 30 Nov 2010 19:02:27 +0000

A Los Angeles judge awarded $200,000 in attorneys fees while dismissing a lawsuit brought by Dole against filmmakers who had made a documentary alleging Dole exposed workers in Nicaragua to dangerous pesticides. -db

The Hollywood Reporter
Commentary
November 28, 2010
By Matthew Belloni

Free speech advocates can go bananas over a new court ruling against food giant Dole. A Los Angeles judge has awarded $200,000 in attorneys fees and costs as punishment for filing a defamation lawsuit against the filmmakers behind Bananas!*, a controversial documentary that claimed Dole exposed workers in Nicaragua to harmful pesticides.

Bananas!*, which played at the 2009 Los Angeles Film Festival, investigated a 2008 lawsuit against Dole by Nicaraguan workers who claimed that exposure to DBCP pesticides made them sterile. After the film was completed, the lawsuit was revealed to be based in part on fraudulent information. But Swedish filmmakers Fredrik Gertten, Margarete Jangard and WG Film AB went forward with screening the film anyway.

Dole sued, claiming defamation, but dropped the case in October 2009 amid free speech criticism from groups in Sweden. Now Dole can add Los Angeles judge Ralph Dau to its critics. Dau granted the filmmakers motion under California’s anti-SLAPP law, which protects against lawsuits intended to stifle debate on topics of public importance. The filmmakers were awarded $200,000 in fees and costs.

“We are extremely happy and relieved with the court’s ruling after this yearlong struggle,” says director Gertten in a statement. “Corporations such as Dole must respect freedom of speech and the freedom of the press. These conglomerates have unlimited resources available to them to get their messages out, while independent filmmakers who are under attack while trying to uncover the truth have very limited means to defend ourselves.”

We’ve reached out to Dole attorney Scott Edelman at Gibson Dunn & Crutcher and will update with a response.

The $200,000 fee award isn’t surprising, given the case was voluntarily dismissed by Dole (the filmmakers’ lawyers at Lathrop & Gage actually requestsed about $50,000 more in fees). It illustrates the risk of bringing defamation cases based on the content of films or other media in states like California with strong anti-SLAPP laws.

“The fee award is particularly gratifying because it sends a very important message,” says filmmaker attorney Lincoln Bandlow. “I’m very happy to tell my Swedish clients that the First Amendment is still alive and well in America.”

California appeals court upholds finding of SLAPP in auto insurance case

donal brown — Mon, 20 Sep 2010 18:39:34 +0000

The Fourth District Court of Appeal ruled that a lower court had been correct in dismissing a suit against a lawyer as a strategic lawsuit against public participation. -db

Metropolitan News-Enterprise
September 17, 2010
By Sherri M. Okamoto

A Mission Viejo lawyer who subpoenaed the mental health records of his client’s insured in the context of a contractual arbitration of an uninsured motorist claim engaged in protected conduct for purposes of a special motion to strike, the Fourth District Court of Appeal has ruled.

In its decision Wednesday, Div. Three explained that arbitration under Insurance Code Sec. 11580.2 constitutes an “official proceeding authorized by law” within the meaning of Code of Civil Procedure Sec. 425.16(e)(2) and so Orange Superior Court Judge Kazuharu Makino did not err in dismissing Winly Mallard’s claims against attorney Rivers J. Morrell III as a strategic lawsuit against public participation.

Accident Claim

Mallard had purchased an automobile insurance policy from Morrell’s client, the Progressive Choice Insurance Company, and claimed to have been involved in an accident causing her to incur medical expenses exceeding the $5,000 policy limit. She also asserted an uninsured motorist claim since the driver of the other car involved in the accident did not have liability coverage.

In her verified responses to the form interrogatories Morrell propounded on Progressive’s behalf, Mallard asserted that she had difficulty sleeping and suffered “[s]hock” and “[n]ervous anxiety” as a result of the accident.

Morrell subpoenaed Mallard’s mental health records from her health care providers. Although Mallard’s counsel contacted Morrell and asked the subpoenas be withdrawn, Mallard did not file a motion for a protective order or otherwise object to the subpoenas as seeking privileged material. The uninsured motorist claim was eventually submitted to arbitration.

Mallard later filed a complaint alleging claims for invasion of privacy and abuse of process against Morrell and Progressive, based on the subpoenas for her mental health records, but she only served Morrell with the complaint.

Morrell filed a special motion to strike, and Makino ordered the complaint dismissed with prejudice as to both defendants. He also awarded Morrell $13,756.64 in attorney fees and costs.

Applies to Arbitration

On appeal, Mallard contended that Morrell’s conduct was not protected by the anti-SLAPP statute because it occurred in the context of a private contractual arbitration, not an official proceeding authorized by law.

Writing for the appellate court, Justice Richard D. Fybel concluded that Mallard’s claim was without merit because Insurance Code Sec. 11580.2 mandates contractual arbitration of uninsured motorist claim disputes and specifically authorizes the use of subpoenas and other discovery devices in such proceedings.
Fybel reasoned that arbitration of uninsured motorist claim disputes was an official proceeding required by law since the parties “were statutorily required to give up the right to resolve any such dispute in a court of law, absent an exception to the enforcement of the contractual arbitration provision such as waiver or consolidation of the matter with a pending court action.”

Litigation Privilege

The justice further noted that Mallard had placed her mental health at issue in the resolution of the uninsured motorist claim dispute and that the subject subpoenas were designed to discover information that could support Progressive’s defense by showing her alleged mental health issues were not caused by the car accident. As the subpoenas had some connection or logical relation to the action, Fybel opined that they were protected by the litigation privilege and Mallard therefore had no probability of prevailing on her claims against Morrell.

However, Fybel said Mallard’s claims against Progressive were not properly subject to dismissal based on Morrell’s successful anti-SLAPP motion since the insurer had neither been served in the case nor filed a motion on its own behalf.

Justices Kathleen O’Leary and Raymond J. Ikola joined Fybel in his opinion.

The case is Mallard v. Progressive Choice Insurance Company, 10 S.O.S. 5419.

‘Hurt Locker’ producers cite First Amendments protections in dispute with Iraq war vet

donal brown — Tue, 15 Jun 2010 18:29:40 +0000

Producers of the Oscar winning “The Hurt Locker” have filed a motion to dismiss a suit brought by an Iraq war veteran who said the filmmakers ripped off his life story. -db

Yahoo!News
June 15, 2010
By Eriq Gardner, Reuters

LOS ANGELES (Hollywood Reporter) – Producers of “The Hurt Locker” are firing back against the Iraq War veteran who claimed that his life story was ripped off to create the Academy Award-winning drama.

Master Sgt. Jeffrey S. Sarver filed his case with much fanfare just days before the film won best picture at the Oscars in March. He claimed the depiction of an Army bomb squad was a thinly veiled account of his own story.

According to Sarver’s complaint, journalist/screenwriter Mark Boal breached an agreement with the U.S. military that restricted the reporting of detailed personal information about service members. Sarver said the information was used in Boal’s Playboy article and then the screenplay for “The Hurt Locker,” and that the depiction of the character of Will James violated his publicity rights, defamed him and caused emotional stress.

But now the defendants, including distributor Summit Entertainment, financier Voltage Pictures, Boal, director/producer Kathryn Bigelow and others, have responded to the complaint with a motion to dismiss.

As expected, the defendants cite First Amendment protections on expressive speech. They say that Sarver needs to show, but hasn’t, that his likeness or persona was used wholly unrelated to the film.

The defendants knock Sarver’s breach of contract claim by saying there was no contractual “privity,” or a direct agreement between him and the parties in this case. As far as emotional distress, the defendants attempt to escape this claim based on a lack of specific facts alleged about how the inflection of distress occurred.

The bulk of the defendants’ response is devoted to questioning why New Jersey is the proper venue for this dispute. None of the parties currently reside in the state, and the only apparent connection to New Jersey is that Sarver formerly was a resident of Dover, and the film was distributed in the state. The defendants believe that a California district court would be the proper jurisdiction.

If this case was litigated in California, the defendants would likely file an anti-SLAPP motion to strike the complaint as an abridgment of free speech. That strategy has proven effective for movie producers wishing to dismiss lawsuits based on the content of their films. The defendants could also make a claim for attorneys fees if they win, as well as damages in a countersuit.

The defendants believe that the First Amendment confers broad protections on expressive, commercial speech, but recent courts have challenged this assumption. For example, last month, a federal judge inTennessee rejected a similar argument from the Weinstein Company to dismiss a lawsuit from soul icon Sam Moore who found an identifiable

likeness in the 2008 film, “Soul Men.”

California court rules suit over attorney’s rule violation a SLAPP

donal brown — Mon, 14 Jun 2010 18:05:27 +0000

A California appeals court ruled that even though an attorney erred in failing to omit identifiers in a court filing of a credit report, the filing was not of a certain type of criminal activity cited in a previous case and therefore was protected activity. -db

Metropolitan News-Enterprise
June 11, 2010
By Steven M. Ellis

An action against a Beverly Hills attorney who admittedly violated a court rule by filing an unredacted copy of a man’s credit report in support of a motion was a strategic lawsuit against public participation, the Fourth District Court of Appeal ruled yesterday.

Div. Three said Irene Intelligator was engaged in protected activity when she filed the report while representing the man’s ex-wife in postmarital dissolution proceedings, and affirmed a trial court’s order striking the man’s complaint.

The justices rejected the man’s argument that Intelligator’s violation of California Rules of Court rule 1.20 constituted the type of illegal conduct that would preclude her from relying on the anti-SLAPP statute to strike the man’s complaint.

Intelligator filed the report in support of a motion to require the man to pay outstanding medical bills his ex-wife claimed were adversely affecting her credit.

According to the wife, a non-English speaking Russian immigrant, she learned of the outstanding bills when she went to purchase a car after the judgment of dissolution was entered. She said she was denied a loan when the lender discovered that she had an adverse credit report, and that the bills were reflected only on her credit report, not her ex-husband’s credit report.

Intelligator sent demand letters regarding the unpaid bills to the ex-husband’s attorney, and later filed a motion to require the man to pay the outstanding bills. She attached copies of both parties’ credit reports to the motion, but failed to redact certain personal identifiers. Intelligator later conceded that she had violated rule 1.20’s prohibition on including such identifiers.

The man sued alleging violations of Civil Code Sec. 1785.19—which allows consumers to bring an action for certain misuse of credit reports—and invasion of privacy, but Intelligator demurred and moved to strike under Code of Civil Procedure Sec. 425.16.

Orange Superior Court Judge Peter J. Polos granted the motion and awarded Intelligator $6,840 in attorney fees and costs. He also later denied the ex-husband’s subsequent motion for reconsideration and his challenge to the award.

On appeal, the ex-husband pointed to the California Supreme Court’s decision in Flatley v. Mauro (2006) 39 Cal.4th 299 that the anti-SLAPP statute does not apply when the assertedly protected speech or petition activity was illegal as a matter of law. He contended that Intelligator’s admitted rule violation exceeded the bounds of protected activity.

However, Justice Eileen C. Moore wrote that Intelligator’s actions were not the type of criminal conduct addressed in Flatley, and noted that the ex-husband had other means of redress, such as sanctions against Intelligator in the ongoing postdissolution proceedings.

“A separate lawsuit was completely unnecessary,” she said. “Furthermore, if an attorney were subject to a separate action each time he or she committed a rule violation in the representation of his or her client, the effect would be to chill the hearty pursuit of a protected activity—the right to petition.”

Concluding that Intelligator met her burden of showing she was engaged in protected activity, Moore then wrote that the ex-husband failed to meet his burden of demonstrating a probability of success on his claims because they were barred by Civil Code Sec. 47(b)’s litigation privilege. She also rejected the ex-husband’s argument that the privilege should yield to rule 1.20’s prohibition on the disclosure of personal identifiers.

Moore also upheld the amount of attorney fees and costs awarded, and said that Polos did not err in denying the ex-husband’s motion for reconsideration.

Justices William W. Bedsworth and Kathleen O’Leary joined Moore in her opinion.

The case is G.R. v. Intelligator, G042006.

Attorney allowed to sue over allegedly defamatory anonymous messages on Craigslist

donal brown — Tue, 01 Jun 2010 19:44:58 +0000

A California district Court of Appeal ruled that a Woodland Hills attorney could sue an anonymous poster for accusing him of committing illegal acts. The court said the posts were neither political speech nor in the public interest and did not qualify for protection under the state’s anti-SLAPP law. -db

Metropolitan News-Enterprise
June 1, 2010
By Steven M. Ellis

A Woodland Hills attorney who has drawn hundreds of disparaging anonymous messages on website Craigslist.org can pursue a defamation case, this district’s Court of Appeal ruled Friday.

Div. One in an unpublished opinion said that Richard Gibson’s action was not a strategic lawsuit against public participation because the posts describing his alleged character flaws and improper conduct were neither political speech nor speech on a matter of public interest.

Gibson, who has advertised his legal practice on Craigslist, filed suit against the unknown posters in 2008 after what he claimed were several years of alleged anonymous, derogatory postings on community discussion boards at Craigslist and on Google’s “Blogspot.”

He said the posts included his office’s mailing and e-mail addresses, his office telephone number and his State Bar number, and, among others, accused him of breaking numerous criminal laws, harassment and stalking, violating the California Rules of Professional Conduct, being mentally ill, threatening the posters with violence, expressing bigotry and using illegal drugs.

The posts also urged readers not to use Gibson as an attorney, threatened him with physical harm and encouraged readers to send him computer viruses, Gibson said. He contended the unknown poster or posters also made similar allegations in e-mails to apparently randomly-selected attorneys in Los Angeles County and in e-mails to Gibson about the postings.

Anonymous messages targeting Gibson on Craigslist have continued, with at least one having been posted as recently as Friday afternoon.

Gibson—who has no public record of discipline, according to the State Bar’s website—said the opinion confirmed that “harassing someone on the Internet is not a political issue, it’s a private thing.” He commented that “there’s a lot of anonymous stalking going on on the Internet,” and said that “if there’s any larger significance [to the decision]…it’s that…if you figure out who’s doing it, you can do something about it.”

Gibson ultimately amended his complaint to name Justin Swingle as a defendant after obtaining Swingle’s name through a subpoena. Asked why Swingle singled him out, Gibson said “it’s really bizarre…I’ve never met, never spoken, never done business with him.”

Swingle answered Gibson’s complaint with allegations that the attorney had deleted Swingle’s Craigslist posts by illegally “flagging” them for violations of the website’s guidelines or policies in an attempt to prevent Swingle from engaging in speech on political issues ranging from illegal immigration to religious bigotry. Posts are removed from Craigslist if enough users “flag” them, or if the website’s staff independently determines a post to be improper.

Swingle also brought causes of action alleging intentional infliction of emotional distress and violation of the constitutional right to free speech, and then moved to strike Gibson’s complaint, admitting that he posted some of the messages but arguing he was engaged in protected political speech.

Los Angeles Superior Court Judge Paul Gutman denied the motion because Swingle failed to file it within 60 days of Gibson’s initial complaint.

On appeal, Presiding Justice Robert M. Mallano agreed with Swingle that the motion was timely because it was filed within 60 days of an amended complaint naming Swingle’s trust as a second defendant. However, the justice denied relief because Gibson’s claims “are not based on statements made in connection with a public issue.”

Under California’s anti-SLAPP statute, which applies to suits aimed at preventing citizens from exercising their political rights or punishing those who do, a defendant seeking to strike the complaint must show that the challenged cause of action arises from protected activity, such as speech on a public issue. If the defendant meets this burden, the plaintiff must then show a probability of success in order to keep the case alive.

But Mallano said Swingle failed to meet the initial burden. Opining that the anti-SLAPP statute’s focus is the defendant’s activity that gives rise to the asserted liability, not the form of the plaintiff’s cause of action, and leaving for later the issue of whether Swingle’s comments were actually defamatory, he wrote: “Gibson’s claims are based on defendant’s alleged derogatory Internet posts, not on political statements.”

Justices Frances Rothschild and Victoria Gerrard Chaney joined Mallano in his opinion.

Gibson told the MetNews that in the course of his case he discovered that Swingle “does this with lots of people,” and speculated that it was “a power thing.”

He said trial on the defamation action was the next step, but commented:

“It’s weird; [Swingle] admits it, pretty much. His only defense is to say it’s true.”

Gibson maintained that such an assertion would be inaccurate.

Swingle’s counsel, Jeffrey Agnew of Ramona, could not be reached for comment.

The case is Gibson v. Swingle, B217082.

Southern California: Appeals court rules against student for Web site hate speech

donal brown — Thu, 18 Mar 2010 18:23:27 +0000

A California private school student lost an appeal of a decision against him for death threats he sent to a classmate on the classmate’s Web site. The court said the speech was not protected under the First Amendment since it conveyed serious expression to inflict bodily harm. -db

Courthouse News Service
March 17, 2010
By Avery Fellow

(CN) – A California private-school student who posted death threats on a classmate’s Web site isn’t shielded from hate-crime allegations, because the comments weren’t protected speech, a state appeals court ruled.

Even if the post was constitutionally protected “jocular humor,” as the student claims, it does not concern a “public issue” under the state’s anti-SLAPP law, the 2nd District Court of Appeal ruled.

A 15-year-old student at Harvard-Westlake School posted a message on another student’s Web site, stating, “I want to rip out your fucking heart and feed it to you. I’ve wanted to kill you. If I ever see you I’m … going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.”

The recipient of the spiteful messages sued for violations of the state’s hate-crime laws, defamation and intentional infliction of emotional distress. He had created the Web site to promote his singing and acting career; one of his songs has been broadcast nationally on satellite radio.

On the advice of police, the alleged victim withdrew from the private school. His family then moved to northern California, where he enrolled at a new school.

The appeals court in Los Angeles ruled that the post was a “true threat” and not constitutionally protected.

The post’s author failed to show that the victimized student’s claims were subject to the anti-SLAPP statute, which protects defendants from lawsuits meant to stifle First Amendment rights, the court ruled.

The messages “were motivated by a misperception of [plaintiff]‘s sexual orientation,” the ruling states. California hate-crimes laws protect individuals from threats of violence based on perceived sexual orientation.

“The threat in this case was not merely a few words shouted during a brawl; it was a series of grammatically correct sentences composed at a computer keyboard over a period of at least several minutes,” Justice Robert Mallano wrote.

“If the threat conveys a serious expression of an intent to inflict bodily harm at all or in any manner, it is not constitutionally protected,” Mallano added.

The defendant argued that his extreme dislike of the plaintiff’s radio song had motivated the post, not the plaintiff’s sexual orientation.

Justice Mallano found this argument absurd.

“That a one-time hearing of a song on the radio could generate so vitriolic a reaction defies reason,” he wrote.

Dissenting Justice Frances Rothschild said the post was protected speech, because the plaintiff is “a person in the public eye” due to his fledgling career in the entertainment industry.

She characterized the post as “just one more link in the chain of vulgar, adolescent rants.”

Time has come for a federal anti-SLAPP law

donal brown — Mon, 08 Mar 2010 21:18:43 +0000

A lawyer who earns considerable income from defending citizens from Strategic Lawsuits Against Public Participation (SLAPPs) says it is time to back a democratic congressman’s bill for a federal anti-SLAPP law to protect citizens’ free speech rights. -db

Citizen Media Law Project
Opinion
March 4, 2010
By Marc J. Randazza

Congressman Steve Cohen, D-TN is our First Amendment Bad Ass of the week.

Mr. Cohen introduced The Citizen Participation Act, a federal anti-slapp bill. The bill describes its purpose as follows:

To protect first amendment rights of petition and free speech by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called ‘‘SLAPPs’’, and for other purposes.

It is about time.

SLAPP suits are all-too common and are a scourge on our legal landscape. Personally, they have been good for me, as I earn a significant income by defending these kinds of suits, but as much as I love money, I love free speech more (and I’m sure that I could sell that time elsewhere). A SLAPP suit is a “Strategic Lawsuit Against Public Participation.” In other words, it is a lawsuit that some hosebag files against a critic — not because he hopes to win anything, but because the mere filing of the suit is punishment enough for the critic. Lawsuits are expensive, and when a rich douchebag has plenty of money to spend on attorneys’s fees, he can afford to sue a couple of critics, thus scaring the bejesus out of anyone else who might criticize him.

The Public Participation Project had this to say about SLAPPS:

“Regardless of who is speaking and who is suing, everyone is losing when SLAPPs are allowed to continue. These meritless lawsuits clog the courts, waste resources and contribute to a general culture of litigousness. Instead of answering speech with speech, SLAPP filers answer speech with subpoenas and spurious claims.”

SLAPPs frequently end in settlement, conditioned on silence, apology or retraction, so important ideas are excised from the debate, and critical information – about health, safety, economic security, civil rights and liberties, and government abuse – is withheld from the public. Would-be participants in public life see the devastating effects of lawsuits – on life savings, employment, reputation and even staying insured – and think twice before speaking out.

Judge Nicholas Colabella, Jr., famously said of SLAPPs that a greater threat to First Amendment rights can scarcely be imagined. SLAPPs chip away at the will and ability to speak out, person by person, group by group, issue by issue. James Madison cautioned that “there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations,” and his words ring true in the SLAPP context. (source)

About half of the states have some form of legislation against this, but only California and Oregon have anti-SLAPP statutes that are worth a damn. Flori-duh’s is so watered down that it may as well only apply when a Unicorn shits on the Defendant’s lawn. However, in California and Oregon, if a Plaintiff files a lawsuit that implicates the Defendant’s First Amendment rights, the Defendant can file a “special motion to strike.” Then, the Plaintiff will need to show that his suit is not just a baseless and harassing claim. If the Plaintiff can’t do that, then the case is dismissed and the Plaintiff has to pay the Defendant’s attorneys fees.

Congressman Cohen’s bill is very similar to the California law (Cal. Code Civ. Proc. 425.16), and provides the right kind of remedies. One would think that the Republicans would line up behind this — as it provides much-needed “tort reform.” The Democrats… well, there was a time when the Democratic party seemed like the party that favored free speech. I am starting to doubt that, but Mr. Cohen should be able to marshall some of his Democratic colleagues to support this bill.

I can not stress how important a bill like this is. If you can, please write a letter to your Representative urging their support for HR 4364.

Copy this post, if you like. You don’t even need to attribute, if you don’t want to. (I hereby release the copyright in this post to the public domain). Distribute the news far and wide. If you ever use your First Amendment rights, then this bill matters to you.

And… to really make the other congressmen stand up and take notice, if you can afford to, send Congressman Cohen a campaign contribution with a note stating that you only sent it because of his sponsorship of this bill. I sent him a hundred bucks today.

Massachusetts Supreme Court rules that the state’s anti-SLAPP law does not protect journalists

donal brown — Tue, 02 Feb 2010 19:46:36 +0000

An ACLU lawyer argues that the Massachusetts Supreme Judicial Court erred in ruling that journalists are not protected by the state’s anti-SLAPP law owing to their role in reporting objectively. The ruling ignores the role of the reporter in petitioning on behalf of the community. -db

Media Nation

Opinion

February 1, 2010
By Sarah Wunsch

Despite our amicus brief urging otherwise, the SJC has affirmed Judge Hines’s Superior Court denial of the special motion to dismiss under the anti-SLAPP statute that had been filed by the journalist, Hollander, after she was sued by the developer, Fustolo.

The unanimous opinion is written by Justice Botsford. Her opinion focuses on the fact that Hollander was not seeking to redress a grievance or to petition for relief of her own. She says, “As in Kobrin, the defendant’s conduct was not an attempt to redress a wrong he suffered, nor was he petitioning on his own behalf.”

Although the opinion says that a person is protected only if personally seeking redress of a grievance of his or her own, Justice Botsford distinguishes a case in which an attorney was given protection under the anti-SLAPP statute for his statements on behalf of his clients, and not for himself. To do that, she asserts that reporters occupy a different position with respect to a petitioning party than does the party’s attorney.

“There is nothing about the role or function of a staff reporter of an independent newspaper that by its nature renders the reporter a representative or agent of every, or indeed any, community organization that the reporter may cover,” particularly where the reporter denies representing a particular viewpoint. She contrasts this with Baker v. Parsons, where a biologist employed by an organization testified about her views and was protected by the SLAPP statute. (This reasoning seems to leave out of the equation whether the media outlet itself is the “petitioning party.” She seems to assume that it is only the community-based advocacy groups whose views the journalist is promoting.)

Thus, one of our concerns, that employees of advocacy organizations would not be protected by the anti-SLAPP statute, appears alleviated. Even if you are working for someone else as an advocate, as long as it is clear you are advocating for something, you should be protected.

Justice Botsford does reject the concept in Judge Hines’ opinion that because Hollander was paid, she had a private reason for her reporting, and was not sued for her petitioning alone. Being paid does not take a person out of the SLAPP protection.

Finally, Justice Botsford disagrees that this ruling will chill journalists. She cites New York Times v. Sullivan and the protection for reporters under that and under the fair-report doctrine.

As I read the opinion, a reporter writing news stories that are supposedly “objective” will not be protected by the SLAPP statute, despite the very broad definition of petitioning activity. If an editor or publisher wants to stir up the public to get them to support government action by focusing a series of news articles on the subject, too bad. No anti-SLAPP statute protection seemingly for the journalist despite the fact that the definition of petitioning includes this. I do not think this result is correct.

Under the Botsford decision, an opinion columnist is likely going to be protected by the anti-SLAPP statute, as is an employee of an advocacy organization. It seems that the concept of objective fair news reporting operates here to deprive news reporters of anti-SLAPP statute protection. One question is whether the newspaper publisher will be protected. The Botsford opinion talks about advocacy organizations but doesn’t seem to recognize that news media organizations can be advocacy organizations or be the “petitioning party” itself, engaged in activity that meets the definition of petitioning under the statute.

Sarah Wunsch is staff attorney for the ACLU of Massachusetts.

Rolling Stone Magazine wins ruling in dispute over use of image

donal brown — Mon, 01 Feb 2010 18:46:13 +0000

A California appeals court dismissed a lawsuit by rock musicians against Rolling Stone over a use of their image that they said implied they sponsored a cigarette brand. The court found that the image was noncommercial speech protected by the First Amendment. -db

The Reporters Committee for Freedom of the Press

January 29, 2010
By Cristina Abello

A California appellate court yesterday found that a lawsuit by “indie” rock musicians against Rolling Stone over a feature article inside fold-out advertising pages should be dismissed under the state anti-SLAPP statute.

A San Francisco appeals court held that the article in question, a visual representation of a variety of bands in the “Indie Rock Universe,” was noncommercial speech protected by the First Amendment.

A group of musicians sued Rolling Stone over the use of their names in an article that was wedged between pages of a Camel cigarette advertisement. The musicians said it implied they sponsored the cigarette brand and was a commercial use that misappropriated their names and likenesses. Misappropriation occurs when a person’s identity is used without their permission for a commercial purpose, such as in an advertisement.

The Rolling Stone article appeared in the November 2007 issue of the magazine. After the musicians sued, the magazine filed an anti-SLAPP — a Strategic Lawsuit Against Public Participation — motion to dismiss, which was denied because the court ruled that a judge could find that the article about the bands was transformed from editorial into commercial speech by its closeness to the advertisements.

But the appeals court agreed with Rolling Stone that because the main purpose of the magazine is commentary and entertainment journalism, nearby advertising did not constitute using the band’s names to sell the particular product advertised, as is required in a misappropriation case.

“There is … no precedent for converting a noncommercial speaker into a commercial speaker in the absence of any direct interest in the product or service being sold,” Justice Robert Dondero wrote in the opinion.

The Reporters Committee joined a friend-of-the-court brief filed by media organizations.

Baseless threats still pose threat to free speech

donal brown — Thu, 10 Dec 2009 23:14:25 +0000

Attorney Eric Puryear writes that when he posted comments about a case of legal armed self defense in Florida, he received threats from who he guessed was a relative of the person shot dead when committing burglary. The relative made legal threats that Puryear says could have a chilling effect on the speech of non-lawyers. -DB

San Francisco Examiner
Commentary
December 10, 2009
By Eric Puryear

Each week, I discuss a tiny percentage of the armed self defense cases that occur. My goals include raising awareness of the fact that armed citizens successfully defend themselves every day, pointing out the less obvious benefits of armed self defense, and debunking the anti self defense myths that pervade the mainstream media. Over the last few months, I’ve noticed more and more relatives and friends of dead criminals, who were fatally shot in self defense by their would-be victims, searching out websites such as this one and then trying to prevent those self defense cases from being discussed. An example of this, and my thoughts on the matter, are discussed below:

“Legal” threats as an attempt to block the discussion: an example

A while back, I discussed a self defense shooting case from Sorrento, Florida, where a lawn care equipment burglar was reportedly caught in the act by the homeowner. When the burglar lunged at the homeowner, the homeowner shot the burglar in self defense, according to police. Brett Lee Canada, who had previously been arrested for a similar crime, was found dead at the scene and named as the burglar. The homeowner was unharmed, and didn’t face any charges for his rightful self defense action.

In that article, I began by discussing the facts as reported by the local newspaper. I then shifted focus to self defense in general, and discussed the importance of being able to defend oneself and one’s family against unexpected attack by criminals. In response, a person named Barbara, who seems to have been a relative or friend of Brett Lee Canada, left a comment which included the following:

“WOW violent huh, you might just want to get your facts straight before posting this crap. You never know you may end up sued. . . Stealing is wrong, murder is worse

After receiving the above comment, I replied and explained that lunging at the homeowner would constitute a “violent” act, and that self defense is not murder. I also noted that I was an attorney, and as such knew that her statement about suing lacked any legal merit. Apparently not interested in debating the substantive self defense matters, Barbara continued to make legal threats in an effort to block my discussion of that self defense case. She even went so far as to assert that articles from LearnAboutGuns.com (which were written long before this self defense shooting) somehow made her (non-existent) legal claim stronger:

“. . . I guess that would be up to 12 jury members wouldn’t it. Maybe you will get lucky and find out. . .”

“Hopefully I will get to see you in about three to six months. But before I go, just want to thank you for all the material that you have provided [asserting that my further discussion somehow bolstered her (non-existent) legal position] . . .”

The conversation went downhill from there, and I basically ignored her legal threats. I posted some links to articles discussing self defense, and explaining why each of us has a right to defend ourselves against violent attack. It appears the my statements fell on deaf ears.

The utter lack of a legal basis for Barbara’s threats

As an attorney, I found Barbara’s legal threats to be laughable. To very briefly summarize: First and foremost, it is impossible to defame a dead person, meaning that anything I said about Brett Lee Canada would not be actionable in the first place, as a matter of law. This means that even if Barbara were to file a lawsuit, it would be thrown out right away by the judge, without the “12 jury members” she spoke of ever coming into play. Secondly, in that story I merely quoted and paraphrased a news report, attributing the statements of fact to their authors. This is the same thing that newspapers do to avoid liability for defamation should the facts they print turn out to be untrue, again defeating a defamation claim. Indeed, this level of care on my part was unnecessary since no liability could attach for defaming a dead person, but I believe in attributing facts just as a matter of principle. Thirdly, in order to succeed at a defamation claim, it is necessary for the complained-about statement to be untrue, which is something that it seems Barbara would have a very difficult time with indeed. In sum, any one of the three above discussed points would be enough to prevent her threatened defamation lawsuit from succeeding. The presence of all three just make this into one of the most clear-cut examples of non-defamatory speech that I can think of. Rather than being liable myself, I might even be able to state a claim Barbara under an anti-SLAPP law, should she attempt to so abuse the court system. [Note: As always, nothing on this website constitutes legal advice.]

Why such baseless threats are still a problem

What does concern me is the chilling effect upon speech that people like Barbara can have, when they threaten non-lawyers. When someone who doesn’t understand defamation law is threatened as I was, they may take down the article out of fear. Readers who would have provided insightful comments may also be afraid to speak their mind. The end result is that pro gun and pro self defense speech is blocked. Given the importance of gun rights and self defense, the blocking of this speech is a loss for us all.

This is a problem for which I don’t have a solution. The law already provides broad protections for speech about matters of public concern (e.g. self defense shootings) – but that protection only means something if the speaker knows the law. I’m going to have to give thought to this issue, and hopefully come up with some ideas as to how non-lawyers can be helped when faced with this sort of intimidation attempt.

Court rules anti-SLAPP law not a defense for law firm sued for malpractice

donal brown — Thu, 03 Dec 2009 21:10:27 +0000

A California appeals court ruled that a law firm could not defend itself in a malpractice suit citing California’s anti-SLAPP laws since the client’s focus was on their attorney’s quality of performance rather than their speech and petitioning activities. -DB

Metropolitan News-Enterprise

December 3, 2009
By Kenneth Ofgang

The anti-SLAPP statute does not protect a law firm from being sued for malpractice based on activities it performed on behalf of the client who later sued it, the Sixth District Court of Appeal ruled yesterday.

“[C]lients do not bring such lawsuits to deter the speech and petitioning activities done by their own attorneys on their behalf but rather to complain about the quality of their former attorneys’ performance,” Justice Franklin Elia wrote for the court.

The justices reversed a Santa Clara Superior Court judge’s ruling and revived a suit against Simpson Thacher & Bartlett LLP and Alexis Coll-Very, a litigation partner in the firm’s Palo Alto office.

PrediWave Corporation alleges that Simpson Thacher had an irreconcilable conflict of interest when it represented both the corporation and its founder and chief executive officer, Jianping “Tony” Qu, between May 2004 and June 2005, when the firm withdrew as counsel for all involved after billing more than $10 million in fees.

During that time, PrediWave alleges, the firm breached its fiduciary duties to PrediWave and aided Qu in resisting efforts by New World TMT Limited—a technology company and part of a Hong Kong conglomerate—to discover that Qu was committing fraud.

New World allegedly agreed to spend more than $700 million to purchase all of the preferred shares of PrediWave and related companies and to purchase video-on-demand set-top boxes manufactured by PrediWave with related hardware and software. As part of the agreement, New World received two seats on PrediWave’s board.

According to PrediWave’s complaint against Simpson Thacher, the outside directors tried to investigate allegations that Qu was diverting millions of dollars from the company but were stifled by the law firm, which sued to block the directors’ access to the company’s books, “stonewalled discovery,” and “facilitated Qu’s continued fraud and theft of PrediWave assets” by filing repeated motions, both in the suit against the directors and in a fraud/breach of fiduciary duties action that New World brought against PrediWave and Qu.

The set-top boxes turned out to be defective, and PrediWave filed for bankruptcy protection. New World, after obtaining leave of the bankruptcy judge to pursue its claims, obtained a judgment of more than $2.8 billion, including $2 billion in punitive damages.

The looting of the company could have been prevented, PrediWave alleges, if the lawyers had advised the directors of the conflict between their interests and Qu’s, recommended an independent investigation of the allegations against Qu, and established an independent audit committee, among other things.

In granting the firm’s anti-SLAPP motion, Judge Joseph Huber ruled that the claims were “based in significant part upon protected petitioning activities” and that the company could not prevail because the suit, filed three years after the law firm withdrew, was untimely.

But Elia, writing for the appellate court, said that the lawyers could not use the anti-SLAPP statute to strike a complaint based on free-speech activities in which they engaged as the plaintiff’s representatives.

The court rejected the trial judge’s conclusion that Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658—which held that claims by victims of a Ponzi scheme against a law firm, for professional malpractice and abetting a breach of fiduciary duty, arose from protected activity within the meaning of the anti-SLAPP statute—controls.

The justice explained:

“In determining the applicability of the anti-SLAPP statute, we think a distinction must be drawn between (1) clients’ causes of action against attorneys based upon the attorneys’ acts on behalf of those clients, (2) clients’ causes of action against attorneys based upon statements or conduct solely on behalf of different clients, and (3) non-clients’ causes of action against attorneys.”

The statute, Elia noted, applies only when the protected activity arises out of “any act of that person”—the defendant—“in furtherance of the person’s [constitutional] right of petition or free speech…in connection with a public issue.”

Treating the attorney’s actions in the first type of case as protected activity “unreasonably expands the language beyond the clear legislative purpose and leads to absurd results,” Elia said, adding that Peregine was wrongly decided to the extent it holds otherwise.

Jeremy B. Rosen of Horvitz & Levy argued the appeal for PrediWave and Bradley S. Phillips of Munger Tolles & Olson argued for Simpson Thacher.

The case is PrediWave Corporation v. Simpson Thacher & Barlett LLP, H03342.

Anti-SLAPP law used against citizens legislature intended to protect

donal brown — Mon, 05 Oct 2009 20:03:12 +0000

The Redding Record Searchlight says that when Shasta County uses an anti-SLAPP law to sue a citizen seeking redress of grievance, it constitutes a regrettable development for a law intended to protect the right of citizens to speak out on controversial issues. -DB

The Redding Record Searchlight
Opinion
October 5, 2009

Leave it to the lawyers.

In 1992, the state passed a law aimed at protecting citizens who speak their minds on controversial issues from expensive, time-consuming lawsuits.

In 2009, that same law is being used by the government itself against a citizen – and to drag out a lawsuit.

The litigation between Inwood winery owner Reverge Anselmo and Shasta County is a complicated affair. Anselmo probably could have settled it long ago by playing nice over a county grading permit, but he has the resources and inclination to fight it out.

He sued various state and county officials last year, including Supervisors Glenn Hawes and Les Baugh. He then added the complaint that the county vengefully denied a Williamson Act tax break – which the Board of Supervisors failed to approve late last year in part because Hawes and Baugh recused themselves from the vote. (They were right to do so, since Anselmo was suing them and all.)

In fighting Anselmo’s lawsuit, the county’s legal team has wielded a novel weapon: the anti-SLAPP law. A SLAPP – or strategic lawsuit against public participation – is an abusive legal action designed to intimidate citizens into silence. The state’s anti-SLAPP law allows a judge to quickly dismiss such suits and protect a citizen’s rights.

The county, however, has tried to have Anselmo’s lawsuit dismissed on the argument that it threatens the First Amendment rights of county officials and, indeed, the county itself.

Superior Court Judge Monica Marlow rejected that idea, but now the county has appealed Marlow’s ruling. The 3rd District Court of Appeals in Sacramento will consider the issue in the appellate courts’ sweet time.

Does Anselmo’s lawsuit have any merit? Who knows? But he is exercising his right to petition for redress of grievance – the very right the Legislature aimed to safeguard with the anti-SLAPP statute. That a measure to protect citizens is now being exploited to protect government from a citizen is probably legal, but it’s a sad twisting of a noble law.

Our view: The anti-SLAPP law wasn’t written to protect the government.

Nonprofits step up in fight against use of lawsuits to stifle free speech

donal brown — Tue, 29 Sep 2009 18:57:10 +0000

OMB Watch writes that nonprofit organizations have made strong contributions recently in curbing meritless lawsuits to silence and punish people entering the public arena. A congressional representative is planning to introduce anti-SLAPP legislation soon. -DB

OMB Watch
September 29, 2009

Nonprofit organizations have recently been active in efforts to prevent the use of lawsuits designed to discourage public participation. Nonprofits across the country have played a role in the campaign to eliminate Strategic Lawsuits Against Public Participation (SLAPPs). These efforts coincide with a pending legislative proposal to combat SLAPP suits on the federal level.

SLAPPs are “meritless lawsuits brought on the basis of speech or petition activity” and “silence and punish those who engage in public participation, chilling speech that is essential to the functioning of our democracy and to the public interest,” according to the Federal Anti-SLAPP project.

SLAPPs are increasingly getting more attention due to the chilling effect that they have on the speech rights of individuals and organizations. Both national and local nonprofits are active in the anti-SLAPP movement.

Many organizations have taken the lead in bringing this issue to a larger audience. The Citizen Media Law Project has blogged about a case involving an ex-congressman who sued an individual for defamation after a court ruling revealed the individual’s identity. That individual had commented anonymously on the ex-congressman’s online news article. The case was dismissed as a result of New York State’s anti-SLAPP law.

Nonprofits are also involved in helping to defend against SLAPPs. The Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), the First Amendment Project, Public Citizen, and the California First Amendment Coalition are some of the organizations that are assisting individuals and organizations when SLAPPs are filed. For example, EFF has represented individuals and obtained dismissals by citing state anti-SLAPP statutes in cases involving anonymous posting on blogs and websites. Similarly, the ACLU represented the sponsor of a successful California ballot initiative that made marijuana use Santa Barbara’s lowest law enforcement priority after the city sued the initiative sponsor.

The City of Santa Barbara filed suit in the marijuana case challenging the constitutionality of the initiative, which was passed by two-thirds of Santa Barbara voters. The ACLU argued that, “While the City is free to challenge the duly enacted initiative – however baseless its claims – it cannot name [the initiative sponsor] as the defendant solely because she exercised her right to sponsor a petition that the voters enacted. California law protects defendants like [the initiative sponsor], sued in their capacity as participants in the political process, from strategic lawsuits against public participation (“SLAPP”).”

The nonprofit organizations involved in the anti-SLAPP movement have highlighted various methods to defend against SLAPPs. Often, the first step is to determine if others have been hit with the same SLAPP and, if so, to strategize together. If the SLAPP was filed due to an individual’s vocal opposition, it is common for the filer to sue all opponents, according to the California Anti-SLAPP Project. Informing the media and getting positive coverage is another technique used to defend against SLAPPs. SLAPPs are also a way to retaliate against public interest lawsuits, so organizations that are regularly involved in such suits should be prepared for such actions. Additionally, having other organizations join a lawsuit can be helpful in preventing a SLAPP counterclaim. “Often, the mere existence of several groups opposing a single project or opponent can add a note of importance to your lawsuit,” according to the California Anti-SLAPP Project.

Individuals and organizations can prevent becoming a SLAPP target by being knowledgeable about anti-SLAPP statutes, checking homeowner and business insurance policies and being aware of what is covered, making sure that all statements are factually accurate, and seeking legal advice if there is uncertainty concerning whether planned written or oral statements may subject the individual or organization to a lawsuit.

On the federal level, Rep. Steve Cohen (D-TN) plans to sponsor anti-SLAPP legislation during the 111th Congress. The Citizen Participation in Government and Society Act of 2009 will prevent individuals or groups from using the federal court system to intimidate or discourage citizens from public participation. Many nonprofit groups have signed on as supporters of the proposed legislation, including OMB Watch, the Natural Resources Defense Council, the Alliance for Justice, Public Citizen, and the Center for Science in the Public Interest. Cohen also sponsored anti-SLAPP legislation in Tennessee when he was a state senator.

California Supreme Court upholds SLAPP ruling in case against Fox News

donal brown — Mon, 31 Aug 2009 16:54:12 +0000

The Supreme Court upheld the dismissal of a suit brought by day laborers finding that they were not defamed in a Fox News story. -DB

Metropolitan News-Enterprise
August 27, 2009

A Fourth District Court of Appeal ruling upholding the dismissal of a suit charging Fox News Network with defaming immigrant day laborers in a story about a fight they had with an anti-immigration activist has been left standing by the state Supreme Court.

The justices, at their weekly conference Wednesday in San Francisco, voted 6-1 to deny review of the May 14 ruling by Div. One that the suit was properly stricken under the anti-SLAPP law. Only Justice Kathryn M. Werdegar voted to grant review in Balzaga v. Fox News Network, LLC, 173 Cal.App.4th 1325.

Div. One’s 2-1 decision affirmed San Diego Superior Court Judge Ronald L. Styn’s order eliminating the claim against Fox from the suit arising from a November 2006 incident involving John Monti.

Monti is a teacher from Montebello who has argued that day labor sites should be shut down in order to discourage illegal immigration. Day laborers, he claims, have been living in outdoor migrant camps that are the scene of illegal activities, including child prostitution.

On the day of the incident, he says, he was photographing day laborers, who attacked him. The police promptly arrested Jose Balzaga, whom they identified from the pictures Monti took, but released him after questioning, pending further investigation.

Fox News showed a four-minute story about the event on its since-cancelled “Hannity & Colmes” show, featuring Monti’s charges against the migrants and his claim that the police were not taking the incident seriously. Monti displayed a poster containing photographs of seven of the men, including Balzaga.

The entire story was shown with the caption “MANHUNT AT THE BORDER.”

The seven men filed suit against Fox News, Monti and San Diego Minutemen leader Jeff Schwilk, charging violation of civil rights and defamation. Monti filed a cross-complaint against the plaintiffs, the San Diego Police Department and a pro-immigration activist who allegedly tried to persuade police to arrest Monti.

The Fourth District ruling concerned only the anti-SLAPP motion by Fox News, which was granted after the judge found that the men were unlikely to prevail against the network. Styn concluded that no reasonable person would understand the story as containing an allegation that the police were actually searching for the plaintiffs or had charged them with crimes.

The judge explained: “It’s pretty clear if there is a manhunt, it’s by this guy [Monti], it’s not a police manhunt, it’s this Monti guy.”

When the plaintiffs’ counsel countered that a “manhunt” generally refers to a search by more than one person and thus must have referred to the police, the judge responded:

“If you take it in the context of the entire broadcast, I don’t think that’s what you come away with. There’s no mention of police, manhunt, there’s no inference of it. There’s this one guy who’s out there on this rant with his pictures and that, and they talk about him, and they have a little caption ‘Manhunt at the Border.’ I just don’t see it.”

Justice Judith Haller agreed: “[W]e conclude that a person who viewed the Fox News broadcast would not have reasonably concluded that law enforcement officers were conducting a ‘manhunt’ for plaintiffs,” the justice wrote. “Instead, viewed in context, the Manhunt caption was an attention-grabbing or colorful way of referring to Monti’s own attempts to bring to justice the alleged perpetrators of the attack against him.”

The caption, Haller explained, must be understood in context. The story, she noted, made clear that police were “investigating” the incident, and referred to Monti’s “alleged attackers” and his allegations of what they did to him. It also included Monti’s criticism of the police, including the statement that “if it had been eight white guys attacking a migrant, I think they would have already tried and convicted…the people in the court of public opinion.”

Presiding Justice Judith McConnell concurred, while Justice Cynthia Aaron dissented.

“The majority’s conclusion is based on the notion that any reasonable viewer of the telecast would interpret the word ‘manhunt’ in a manner that is inconsistent with any known definition of the term, and inconsonant with the context in which the term is used in the telecast,” Aaron wrote. “Because I cannot agree with the majority’s reasoning or its conclusions, I dissent.”

SLAPP case: Firm brings more notoriety to itself by appealing suit

donal brown — Tue, 25 Aug 2009 19:00:06 +0000

A management firm who lost a case against a griper defending himself refuses to let the matter die, appealing the case to the Ninth Circuit. -DB

Techdirt
Commentary
August 24, 2009
By Michael Masnick

from the bad-idea dept

Remember that discussion a few months ago about how most lawyers apparently understood the Streisand Effect, and knew better than to file bogus lawsuits against individuals putting up “gripes” sites about their business? We’ve already seen that’s not quite true, but it takes a special level of thoughtlessness to lose such a bogus lawsuit (badly) and then file an appeal. We recently wrote about lawsuit filed by Sedgwick Claims Management against a guy who was upset with the company. Part of his griping, involved taking photos of Sedgwick execs and putting them on a fake “WANTED” poster.

The judge, correctly, threw out most of the lawsuit as being a SLAPP and tossed out the ridiculous “copyright infringement” claim on the use of the photos, noting that it was certainly a case of fair use. Most impressive? The guy fighting Sedgwick and its big law firm won the case defending himself (pro se).   Perhaps because of the pro se nature of defense, Sedgwick has decided to appeal, but Eric Goldman can’t figure out what they’re thinking as all it does is call more attention to the complaints against the company:
Put this one in the “Are you kidding me?” file. Last month I blogged about Sedgwick Claims Management v. Delsman involving a small-time griper who had the temerity to cut-and-paste some company executive headshots to create his griping material. Sedgwick went after Delsman in a big way, hiring a big national firm (Lord Locke) to take Delsman down, apparently unaware of or unconcerned about the Streisand effect.

Delsman defended pro se. Despite the long odds, Delsman nevertheless got a rousing dismissal of the claims. The court held the use of the headshots was a fair use (a clearly correct ruling, IMO), and the court casually tossed all of the other claims using California’s anti-SLAPP law.

That should have been the end of it. Instead, surprisingly, Sedgwick has decided to appeal the ruling to the Ninth Circuit. This sets up a potentially important Ninth Circuit showdown over how copyright fair use and anti-SLAPP doctrines apply to Internet gripers. It also gives Sedgwick extra time to bask in the glow of the Streisand effect.

Some people apparently never learn.

Editor’s note: The Streisand Effect surfaces when attempts to censor or remove information from public view
brings the information greater exposure.

California governor signs bill protecting citizens seeking open government

donal brown — Mon, 10 Aug 2009 19:53:19 +0000

Governor Arnold Schwarzenegger singed a bill limiting the ability of state and local public agencies to collect attorney’s fees under the anti-SLAPP law. -DB

California Newspaper Publishers Association
August 7, 2009

A barrier to citizen enforcement of the state’s public records and open meeting laws was eliminated yesterday when Gov. Arnold Schwarzenegger signed SB 786 by Sen. LelandYee (D-San Francisco). Pushed by CNPA, the California First Amendment Coalition and Californians Aware, the new law limits the ability of cities, counties and state agencies to collect attorney’s fees under the anti-SLAPP law.

SB 786 amends California’s anti-SLAPP law and says that the attorney fee award against plaintiffs that is generally available to prevailing defendants in a case dismissed on a motion to strike under the law is not available for causes of action filed to enforce the Ralph M. Brown Act, the Bagley-Keene Open Meeting Law or the public’s right to government information under the California Public Records Act (CPRA).

The need for the bill arises from the plight of Cal Aware and its former President Rich McKee, who, along with a sitting school board member, sued the Orange Unified School District Board for alleged violations of the Ralph M. Brown Act. From Cal Aware’s letter to the governor:

In 2007 we filed an action for declaratory relief—not damages—against a school district, alleging violations of the Brown Act, the CPRA and the First Amendment. We challenged the board of trustee majority’s censure of one of its members for his open session criticism of board action and staff performance, and the superintendent’s editing of those remarks out of the video recording distributed for cable TV replay. Our belief at the time was (and still is) that the public has a right to hear even the harshest criticism by an elected member of a government body as to how the body has dealt with any issue—even a personnel matter—on which it has acted.

But the trial court dismissed our action upon the district’s special motion to strike under Code of Civil Procedure Section 425.16, the anti-SLAPP law, concluding in effect that the board majority’s right to express its opinion through a resolution of censure (contrary to its own policy) was superior to that of the trustee it censured, and that the superintendent’s editing of the video recording violated neither public records nor free speech law since the original recording was available intact at the district office for whoever wished to view it.

The California Court of Appeal agreed and upheld the trial court’s judgment. As a consequence, we were held liable to pay the district’s attorney’s fees and costs for trial and appeal totaling more than $80,000. As a very small nonprofit organization with slim resources, we were unable to bear more than a small share of this obligation. If Californians Aware had been forced to satisfy the judgment alone it would have almost certainly sent us into bankruptcy. Fortunately for us but disastrously for him, almost all of the liability became the burden of our co-plaintiff (and president when we filed the action), Richard McKee. As a chemistry teacher at Pasadena City College, Mr. McKee eventually had to deplete his life savings to accumulate this amount, in the meantime having had his wages garnished and a lien placed on his home.

Had it not been for the automatic attorney fee imposition on a plaintiff whose case is dismissed under Section 425.16—“You lose, you pay”—we and Mr. McKee would have been exposed to this fee-shifting burden only if the court had made a finding that our actions under the Brown Act and CPRA were “clearly frivolous” (Government Code
Sections 54960.5 and 6259), a finding we are confident could not have been made.

SB 786 was also supported by the ACLU and opposed by the California State Association of Counties, the League of California Cities and the California School Board Association. The law becomes effective January 1, 2010. CNPA staff thanks Sen. Yee and his able staffers Adam Keigwin and Eduardo Martinez for shepherding this important bill through the process.