A couple of weeks ago, my good friend and all-around First Amendment bad ass Marc Randazza called on a bunch of law bloggers to make March "Anti-SLAPP Month" in honor of Congressman Steve Cohen (D-TN)’s proposed Citizen Participation Act, which would create a federal anti-SLAPP statute. Others have answered Marc's call, making for some excellent reading on SLAPP-related topics; my personal favorite is Ken from Popehat's federalism-minded analysis of the federal bill's removal provision. I'm still warming up the old gray matter to do a post on the federal anti-SLAPP bill, but for now I bring anti-SLAPP news from California, the state with probably the most robust anti-SLAPP statute in the country.
Some readers may already know about the lawsuit involving "Fred Ross" and the Patterson IrriTator website. For those who don't, George Logan, the City Attorney of Patterson, California filed a lawsuit in January against the pseudonymous "Fred Ross" over comments posted to Patterson IrriTator, a forum site created by Fred Ross to discuss local politics, as well as to news articles on the (confusingly similarly named) Patterson Irrigator website, the online edition of a local newspaper. It is not entirely clear whether "Fred Ross" is one individual or a group of individuals, but the name is inspired by Fred Ross, the community organizer who showed Cesar Chavez the activist ropes in the 1950s.
Logan claims that Fred Ross defamed him by calling him a “joke” and saying that he was “in the pocket" of local developers. Logan alleges that these statements are understood to mean that he "is the subject of general ridicule in the community" and that he "has been paid off by developers in the City of Patterson to make legal rulings in their favor." The complaint does not give any context for these statements, but Fred Ross's recent filing says that the comments were posted to Patterson Irrigator news stories about a controversial development project and a City Council review of the Patterson City Manager's performance.
On March 10, Fred Ross filed a motion to strike Logan's complaint under California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16), arguing that the lawsuit arises out of Ross's protected speech and petitioning activity, and that Logan cannot prevail on the merits. Fred Ross is represented by the California Anti-SLAPP Project, one of the pioneers in anti-SLAPP advocacy. The brief does an excellent job with the legal issues and also draws compellingly on the theme of Fred Ross as citizen pamphleteer and public orator.
At least part of Logan's case is surely bound for dismissal. The statement that Logan is a "joke" is plainly not a provably false factual assertion, and as such it is protected by the First Amendment. The same may be true of the claim that Logan is "in the pocket" of local developers, though this statement is more susceptible to a factual reading. But context is key, and the court could well be swayed by the politically charged character of the underlying debate. See, e.g., Carr v. Warden, 159 Cal. App. 3d 1166, 1168 (Cal. Ct. App. 1984) (finding statement "someone is being bought on the Planning Commission" protected opinion because statement made "in the heat of political controversy" where "charges of gross incompetence, disregard of the public interest, communists sympathies, and the like usually have filled the air; and hints of bribery, embezzlement and other criminal conduct are not infrequent").
In any event, the Anti-SLAPP Project's brief is correct that Logan also fails to adequately plead that the statements in question were made with actual malice, as required in cases involving public officials like Logan. The complaint contains nothing but a legal conclusion: "The above publications were made with malice with the specific intent to injure plaintiff's reputation . . . ." I can't imagine any court accepting this type of bare bones allegation in a defamation case. Query, though, whether a plaintiff can cure this kind of pleading deficiency through factual submissions in response to an anti-SLAPP motion. If you've got a view, please let me know in the comments.
So, while I can't say I'm honoring "Anti-SLAPP Month" with a great victory today, maybe there's one in the making, and this case certainly has a certain David v. Goliath feel to it. We'll keep an eye out and provide updates through our database entry, George Logan v. Fred Ross.