Just How Interesting and to Whom?

Bikkina v. Mahadevan, No. A143031 (D1d4 Oct. 9, 2015)

Two of the four categories of activity protected under the anti-SLAPP statute require the lawsuit to arise from speech activities “in connection with an issue of public interest.” Cal. Code Civ. Proc. § 425.16(e)(3) or (4). Sussing that out can be a tough job for the judiciary, particularly when it is an invitation to weigh in on the seriousness of intra-academic disputes. Just how public or interesting does an issue have to be to meet the test? 

Here, the Court finds that one academic’s relentless and seemingly inaccurate attacks on another’s work doesn’t make the public issue grade. It then goes on to hold that it doesn’t matter anyway, because the plaintiff came forward with enough evidence to defeat the motion. Given the alternative holding, it seems—at least a little—like the court is potentially letting the merits of the dispute color the public interest inquiry. That is, the analysis intimates that the inappropriate and unmeritorious—and thus potentially defamatory—nature of accuser’s accusations precludes them from being publicly interesting in the first place. 

A seemingly disgruntled and perennially short-of-tenure Professor got into a beef with one of his thesis Advisees. It appears to have gotten a little out of control. Professor began to claim credit on Advisee’s published papers. He complained that others—on the topic of carbon sequestration—were the product of bad experimental methodologies. At the end of the day, however, the university’s internal process supported Advisee. 

Ultimately, Professor quit, but kept up his attacks on Advisee with a zombie-like persistence. He went so far as to arrange a conference presentation to about twenty-five people at Advisee’s workplace. Even though the presentation topic was entirely unrelated, Professor digressed into a bunch of irrelevant slides griping about Advisee’s bad data. Advisee finally got fed up and sued Professor on the typical defamation/negligence/IIED theories. Professor responded with an anti-SLAPP motion.

The main issue issue comes down to whether Professor’s various comments and beefing are protected activity, which depends on whether they are “in connection with an issue of public interest” under Code of Civil Procedure § 425.16(e)(3) or (4). While Professor tries to claim that the “issue” is combating global warming—a clear matter of public concern—the court of appeal doesn’t buy it. The real substance of the lawsuit is a lot more limited: Professor’s comments about Advisee’s alleged failure to give credit and his highly technical objections about experiment design. Not exactly An Inconvenient Truth. The Court reasons that given that the parties involved were not in the public eye and that the data dispute was more technical than publicly controversial. Under the circumstances, it is sanguine with saying that there’s no issue of public interest, even though there are other cases holding that academic disputes can sometimes arise to that level.

And even if Professor’s statements addressed issues of public concern, Advisee came forward with evidence to substantiate a likelihood of success. Although Professor might have some evidence to back his complaints—much of it seemingly probative only by squinting hard and drawing extremely broad conspiratorial inferences—Advisee had enough of his own evidence to make a prima facie case. In particular, Advisee had good evidence that what Professor claiming was false. So the dispute precluded granting the motion. 

Nor did the litigation or common interest privileges in Civil Code § 47(b) or (c) apply. The “litigation privilege” in § 47(b) is out because academic gatherings aren’t the kind of official proceedings it covers. And as to § 47(c)—a qualified privilege for communications between “interested persons”—cases have admittedly applied that privilege to academic debate. But even if it applied, Advisee’s prima facie evidence showed that Professor acted with the kind of ill will reckless disregard of Advisee’s rights that defeat the exercise of the privilege.

Affirmed.