Monday, August 1, 2016

Suit Over Slime is Still a SLAPP

Reed v. Gallagher, No C079432 (D3 Jun 29, 2016)

If you sue someone for defamation based on a political campaign ad, you should assume you’ll draw an anti-SLAPP motion.

The ad in question sounds kind of grim. It basically intimates that Plaintiff (who lost the election, hence the suit) was ripping off old people in his practice as a private attorney. Like most campaign attack ads, it has a kernel of truth, but there’s a lot of spin going on. The ad shows some images of pleadings (which are displayed too briefly to read) to which it intimates some ominous significance.

Anyways, for the purpose of the anti-SLAPP analysis, cases addressed to campaign speech generally arise from protected activity. Plaintiff doesn’t really dispute that. Instead, he invokes the Flatley v. Mauro rule—which takes conduct that is illegal as a matter of law out of the anti-SLAPP ambit. Apparently, there is a Penal Code provision that makes it a crime to put out a campaign ad containing false or fraudulent depictions of official public documents or records.  (Who knew? See Penal Code § 115.2.) But defendant didn’t admit the criminality and plaintiff didn’t prove the actions were illegal as a matter of law. So the narrow exception in Flatley does not apply.

And so far as the merits go, Plaintiff can’t fully show literal falsity—most of the worst stuff in the add is subjective inferences and opinions drawn from the underlying facts. Moreover, because this is a public figure scenario, Plaintiff needs to make a showing of New York Times malice—that defendant made false statements knowing, or with reckless disregard of their falsity. As would be expected—particularly given the anti-SLAPP regime’s discovery stay—plaintiff does not really have any evidence of that. He instead suggests that malice is “obvious” given the way the pleadings were mis-described. But because Defendant’s coating of slimy opinion was wrapped around a sufficiently truthy core, the facts were not enough to presume malice.


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