Oregon’s Anti-SLAPP Statute: Not Always Free Speech (2/5) - Arnold Law in Eugene, Oregon – Powerful Advocacy. Proven Results.

Oregon’s Anti-SLAPP Statute: Not Always Free Speech (2/5)

A Defendant’s defamatory statements about a plaintiff may not always constitute an exercise of a constitutional right of free speech in connection with a public issue or an issue of public interest pursuant to ORS 31.150(2)(d).

The phrase “a public issue or an issue of public interest” is undefined in ORS 31.150. Another state jurisdiction defines it as follows:

“Public interest” means more than mere public scrutiny. To be a matter involving public interest, something must be involved in which the public, community at large, has an interest or right which may be affected…A private interest cannot be made a public interest merely because a large number of people have that interest.

State ex rel. Burgum v. North Dakota Hospital Service Ass’n, 106 NW2d 545, 547 (1960). Similarly,

[P]ublic interest [means] more than a mere curiosity; it means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affects. It does not mean anything so narrow as the interests of the particular localities, which may be affected by the matters in question.

City of Enid v. Davis, 206 P 816, 817 (Okla. 1922).

The meaning of “public interest” also may be inferred from the purpose of the statute. Oregon’s anti-SLAPP law was passed “to provide for the dismissal of claims against persons participating in public issues, when those claims would be privileged under case law, before the defendant is subject to substantial expenses in defending them.” Staten v. Steel, 222 Or App 17, 29, 191 P3d 778, 787 (2008). When introducing the bill before the House Judiciary Committee, the Subcommittee on Civil Law, Representative Kurt Schrader explained:

This is encouraging citizens to participate in their State government. We complain all the time about voter apathy and citizens not understanding or being engaged. We need to find a way to encourage them to be engaged, not to be disengaged. When citizens choose to get involved we should be welcoming them, not suing them. The Strategic Lawsuits Against Public Participation poisons the mind of the average citizen and makes them afraid of their own government.

Also speaking in support of the bill, Representative Lane Shetterly stated that the purpose of the bill was to give “some comfort to citizens who want to testify and get involved in local government proceedings.”

In a later hearing before the Subcommittee on Civil Law, Representative Schrader explained:

This bill is nothing less than guaranteeing our basic first amendment rights for our citizens without their being afraid of intimidation by powerful interests that sometimes seem to hold sway here in the state of Oregon and in this country at this point in time…It is important that we encourage citizens, that is what this is about, this is encouraging citizens to engage in their own government…What this bill does do is give the judge judicial discretion to decide whether or not a plaintiff’s claim has merit or not. It provides for what we want which is the speedy disposition of these frivolous threatening lawsuits that attempt to disenfranchise citizens so that we can get on with the public processes…The goal is to find a good solid way to protect citizens’ rights, preserve the integrity of the process, and allow our citizens to feel comfortable participating in our government. “Tape Recording, House Judiciary Committee, Subcommittee on Civil Law, HB 2460, April 19, 2001, Tape 41, Side A (Statement of Kurt Schrader).”

Staten v. Steel, 222 Or App at 30.

Furthermore, the Communications and Public Affairs Program of the Oregon Department of Land Conservation and Development prepared “A Legislative History of the Oregon Experience in Limiting SLAPPs” dated February 20, 2008, that was provided as Exhibit 4 accompanying HB 2460, and presented before the Senate Judiciary Committee on May 15, 2001. TCF, Plaintiff’s Response, Ex J.  The Introduction referred to SLAPP suits in the context of “Americans who speak out in opposition to private development plans before local zoning boards, testify at school board meetings or circulate petitioners to their elected officials.” TCF, Plaintiff’s Response, Ex J, pg 4.  The introduction listed examples of people sued by powerful interests:

  • A woman who filed comments on proposed groundwater rules
  • A couple who wrote letters to their United States Senator and state health officials complaining about the conditions in their nursing home
  • A man who mobilized neighbors against a proposed condominium development
  • A woman who spoke out against a landfill
  • A group of farmers who purchased newspaper advertizing against a proposed ballot measure supported by an agribusiness giant
  • A chapter of the League of Women Voters who opposed a 10-acre development project
  • A consumer advocate who reported carcinogens in a product to a state health agency
  • An environmental group that recommended to the county that specific lands should be preserved as natural areas.

In addressing the specific question of an “issue of public interest” during a Senate Committee on Judiciary public hearing on HB 2640 on May 15, 2001, Chair Minnis asked “what is a public issue or an issue of public interest and where is that defined?” Joe Landry, Legislative Coordinator of the Oregon Chapter of the American Planning Association, replied:

Chair Minnis, members of the Committee, the intention there is to deal with issues that are pending before a decision making body. So an issue of public interest would be a decision that is being made by an elected group of people such as yourselves or an appointed body.

Chair Minnis asked about ORS 31.150(2)(d) and about statements that were not before a public body. Mitch Rohse, testifying on behalf of the Oregon Chapter of the American Planning Association, replied that citizen involvement in land use planning involved such things as meeting or neighborhood organization, newspapers, public participation, writing to a newspaper and so on.   Minnis then stated:

I think what your intent is to make sure whatever this conduct you are protecting the rights of free speech as it relates to the situation like we are engaged in right now. Where you are speaking before a public body and you want to speak out to that public body. But it’s not intended to attach to any other civil action related to some affidavit or complaint related to some activity that might otherwise be construed to be free speech.

In reviewing the public record of the legislative hearings, every person who testified shared the common understanding that the intent of HB 2460 was to protect citizens who spoke up in public proceedings, and to protect individuals and public interest organizations from frivolous suits filed by governmental entities, “big corporations” or similar powerful interests. Nobody contemplated that a private individual should be able to use the anti-SLAPP law to prevent another private individual from bringing a defamation action after being publically defamed in a workplace or to govern interpersonal relationships.

Given the purpose of the law as expressed before the legislature, it appears clear that the anti-SLAPP provisions were meant to protect citizens testifying in public proceedings that allow free-flowing debate and level ground to espouse various positions in the marketplace of ideas, not to give a defendant carte blanche to falsely talk about a co-worker, for instance.

California case law provides some limited guidance with respect to the construction of ORS 31.150(2)(d). California’s anti-SLAPP statute has “in connection with a public issue or an issue of public interest” language identical to the Oregon statute. California Civil Code section 425.16(e)(4). California courts have construed these terms in several cases. For example, in Weinberg v. Feisel, the California court explained:

The statute does not provide a definition for “an issue of public interest,” and it is doubtful an all-encompassing definition could be provided. However, the statutes require that there be some attributes of the issue which make it one of public, rather than merely private, interest. First, “public interest” does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Third, there should be some dress of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort “to gather ammunition for another round of [private] controversy…” [Fifth], “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.

Weinberg v. Feisel, 110 Cal App 4th 1122, 1132-1133, 2 Cal Rptr 3d 385, 392-393 (2003) (internal cites omitted). The Weinberg court went on to give examples of matters that had been found to be in the public interest in a number of California cases:

  • Statements concerning a lawsuit against a large and wealthy church that had been the subject of extensive media coverage
  • Statements about the placement of a shelter for battered women that had been the subject of considerable public scrutiny, including local land use hearings
  • Statements involving allegations of domestic violence against a nationally known political consultant who had successfully used the domestic violence issue in multiple political campaigns
  • Political statements regarding self-government of 3,000 persons who lived in a gated community
  • Statements about a participant in a popular television reality show which had generated considerable public debate

Id. at 1133.  In each of those cases, the public interest was based on whether it was a high-profile controversy or a large number of affected people.

An issue of public interest may arise within a defined community of people, such as when a lawsuit between two cat breeding organizations and supporting factions that rallied around them became a highly publicized and controversial internet topic among the cat breeding community.  Traditional Cat Association, Inc. v. Gilbreath, 118 Cal App 4th 392, 13 Cal Rptr 3d 353 (2004).  For example, A Defendant cannot create a public issue simply by making statements and filing a proceeding with her employer who also happens to be the federal government.

In Rivero v. American Federation of State, 105 Cal App 4th 913, 130 Cal Rptr 2d 81 (2003) (cited in Weinberg as an example of communication that was not in the public interest), a former janitorial supervisor at a public university campus was accused of misconduct by several co-workers. After an investigation, the allegations were not substantiated. However, the plaintiff was demoted anyway, and then fired when he would not accept demotion. Id. at 916. The employees’ union published and distributed three documents which accused plaintiff of soliciting bribes, nepotism, abuse and harassment. Id. at 916-917. The defamatory publications did not involve a matter of public interest because:

…the Union’s statements concerned the supervision of a staff of eight custodians by plaintiff, an individual who had previously received no public attention or media coverage. Moreover, the only individuals directly involved in and affected by the situation were plaintiff and the eight custodians. Plaintiff’s supervision of those eight individuals is hardly a matter of public interest.

Id. at 924.

An issue concerning public health has been found to have public significance in the context of an anti-SLAPP suit. In Kibler v. Northern Inyo County Local Hosp., 24 Cal Rptr 3d 220, 126 Cal App 4th 713 (2005), a court found that a medical doctor’s misconduct aimed at hospital staff and not his patients was a conflict that was related to his performance as a physician. Id. at 225.  The doctor at issue in Kibler filed a lawsuit against the hospital he worked at for intentional interference with right to practice profession; abuse of process; defamation; violation of constitutional rights; restraint of trade; extortion; and conspiracy. Id. at 222. He was accused of escalating unprofessional conduct of extremely hostile and threatening verbal assaults, threats of physical violence, including assault with a gun, and related erratic actions of a hostile nature toward nursing and administrative personnel. Id. at 221.  The hospital filed a motion to strike, contending that plaintiff’s lawsuit constituted an effort to chill defendants’ exercise of free speech as related to an official proceeding authorized by law, which the court granted.  Id. at 221-222.

[Next Page (part 3 of 5): A Plaintiff prevails if established a probability of prevailing at trial by presenting substantial evidence to support a prima facie case]

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