Friday, June 16, 2017

Hunter Limps on in D4

San Diegans for Open Gov’t v. Investigative Newsource, No. D069189 (D4d1 modified on rhrg Jun. 1, 2017)

This anti-SLAPP opinion came out before the Supreme Court’s decision in Park, but it was destined for rehearing in light of it, so I held off till I could address that case. 

Plaintiff is San Diegans for Open Government—an entity that files a lot of litigation. SDOG and its founder were the subject of some negative press from an outfit called inewsource (lack of caps original), which suggested that SDOG had an undisclosed financial interest in some of the litigation it brought.

In apparent retaliation, SDOG sued the inewsource as well as San Diego State and KPBS—SDSU’s affiliated PBS station. But not for defamation. Instead, SDOG claimed that leases and content-sharing contracts between inewsouce and KPBS were the result of unlawful self-dealing and thus voidable under Government Code § 1090 because inewsource’s executive director was also on the journalism faculty of SDSU. Defendants filed anti-SLAPP motions, which the trial court granted. The key issues on appeal are: (1) whether the public interest exception in Code of Civil Procedure § 425.17 applies, and (2) whether the lawsuit “arises from” protected activity.

Section 425.17(b) provides a safe-harbor from the application of the anti-SLAPP statute for certain public interest litigation. Tracking the elements of the private attorney general doctrine, it applies when: (1) the plaintiff seeks only public relief; (2) the suit means to enforce an important public right; and (3) private enforcement is necessary and will place a disproportionate burden on the private plaintiff. Generally speaking, litigation brought under § 1090 meets that test. Courts have generally declined efforts to look through the face of a complaint to find that the exception doesn’t apply due to some secret motive that the litigation is actually contrary to the public interest. See Tourgeman v. Nelson Kennard, 222 Cal. App. 4th 1447 (2014).

But the exception has its own exception. It doesn’t apply to (among others) journalists and the news media “while engaged in the gathering, receiving, or processing information for communication to the public.” § 425.17(d)(1). While entering contracts doesn’t sound like that kind of thing, the court (relying on a dictionary) reads “engaged in” to broadly include “to begin to carry on an activity.” It then says that the contracts were a means by which “inewsource and KPBS jointly were to begin and carry on newsgathering and reporting.” It bolsters that decision with a Senate Bill analysis that suggests that the (d)(1) exception applies to acts that “relate to” news gathering and reporting. Since the contracts address things like sharing equipment, content and newsroom space, the court finds that the gravamen of the suit sufficiently “relates” to newsgathering.

The court then turns to the question of whether the subject of the suit falls within § 425.16(e)(4), which subjects “other conduct in furtherance” of the rights of free speech and petitioning to an anti-SLAPP motion. Here the court relies heavily on Hunter to find that activities that “help” or “advance and assist” first amendment activities like news reporting fall within (e)(4). (And in a footnote, it declines to address Wilson, which goes the other way, on the grounds that review was granted, even though review granted cases have been citable as persuasive since Rule 8.1110(e) was amended in 2016.) The court goes into a discussion of how Hunter requires severance of an allegedly unlawful motive for an action from the action itself, which makes the alleged corruption upon which SDOG’s complaint was based essentially irrelevant to the (e)(4) question.

Having dispensed with the exception and found “arising from” met, the court goes on to find that SDOG failed to prove up a prima facie case of liability.


I frankly find both of the points here to be shaky. The “while engaged in” analysis for the § 425.17(d) exception is strained. The sense of “engage” the court cites the dictionary for—to start or commence something—doesn’t make any sense in the context of the statute’s use of the prepositional phrase “while engaged in,” which just clearly means “doing.” A newspaper signing a lease is just not “engaged in” collecting or reporting the news.

So far as (e)(4) goes, the analysis is somewhat consistent with Hunter, albeit the conduct here seems more tangential to “helping” with actual reportage than the employment decisions at issue in that case. And in any event, if the logic of this case stands, why isn’t computer hacking to get a scoop covered by the same logic? Or bribery? Or breaking and entering? Or wiretapping? Hunter didnt answer that, and this case doesnt either.

As I mentioned at the outset, this opinion was subject to a petition for rehearing following the decision in Park. Mostly the court adds to the decision to distinguish it on the same grounds as Park did Hunter—that the defendant in Park didn’t claim that the allegedly unlawful decision itself fell under (e)(4), just that communications related to it were sufficiently protected to bring the case into the ambit statements made in an official proceeding under (e)(2). Here, like in Hunter and unlike Park, the (e)(4) point is squarely presented. The court makes no mention, however, of the fact that the Supreme Court declined to accept that Hunter was correctly decided.

At the end of the day, this case seems like bad facts making bad law. The SLAPP statute doesn’t address claims that, while not directed to First Amendment activity, are nonetheless motivated as retaliation for public speech. If I sue my neighbor for some bogus boundary fence encroachment because I hate her for writing an editorial about me in the community newspaper, my claim might be frivolous, but it’s not a SLAPP as defined under the statute. Which is basically what’s happening here. Although SDOG denies it with some vehemence, the general facts of the lawsuit leave a lingering stench of retaliation. And it seems like SDOG’s conflict of interest theory was a pretty bogus attack on a well-meaning part-time journalism professor.

But not every bullshit case is a SLAPP. So while courts can and should be vigilant about weeding out these kinds of cases using available tools—like demurrers, early summary judgment motions, and sanctions motions brought under Code of Civil Procedure § 128.7—over-applying the anti-SLAPP remedy is going to cause more problems than it solves. It potentially chills otherwise legitimate litigation activity. Which is precisely the kind of stuff that § 425.16 is supposed to protect.

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