Vogel v. Felice [1]

In September 2001, John Vogel and Paul Grannis, who at the time were candidates for public office, sued Joseph Felice for libel, false light invasion of privacy, intentional and negligent infliction of emotional distress, and negligence. According to legal filings in the case, Felice operated several website on Geocities (www.geocities.com/bobvalenzuelasass and www.geocities.com/bobvalenzuelasass.isonfire.com) that allegedly contained defamatory statements about Vogel and Granis, including "a list entitled 'Top Ten Dumb Asses,'" in which Vogel and Grannis were "listed as the number 1 and number 2 dumb asses, respectively."

Vogel and Granis also alleged that the website “contained statements associating Plaintiffs with criminal conduct and fraud,” and specifically noted “the statement ‘J. J. Vogel’s Wanted as a Dead Beat Dad,’ which, when clicked upon, opened another web site dedicated to locating ‘deadbeat dads,’ ” and “the statement, ‘Paul Grannis—Bankrupt, Drunk & Chewin’ tobaccy’ which when clicked upon, opened a new web page associating Plaintiff Grannis with criminal, fraudulent, and immoral conduct.” Plaintiffs alleged that additional (but unspecified) defamatory statements appeared in “[n]umerous e-mails and bulletin messages . . . sent and received through said web site” as well as in “[o]ther web pages in said web site,” which “contained false and defamatory statements about Plaintiffs, including . . . patent associations with criminal and fraudulent conduct.”

Felice brought a special motion to strike the complaint under California’s anti-SLAPP statute [2], Cal. Civ. Proc. Sec. 425.16, which requires dismissal of any cause of action “arising from any act of [the defendant] in furtherance of [his or her] right of petition or free speech under the United States or California Constitution in connection with a public issue . . . unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

On April 9, 2002, the trial court denied the motion to strike.  Felice appealed the decision, and the Court of Appeal reversed [3], finding that Vogel and Granis had failed to establish a probability of success because they had failed to plead that Felice acted with “actual malice.”  Vogel v. Felice [3], 127 Cal. App. 4th 1006 (2005).  The court also concluded that being called a "dumb ass" was not defamatory because it was a statement of opinion and could not be proven true or false.