In a precursor to what should lead to an outright dismissal of the libel suit against journalist Susan Paterno, a California Court of Appeal has ruled that the News-Press cannot seek to extract information from Paterno to support its claims that Paterno defamed it.
The lawsuit was brought by Wendy McCaw's Ampersand Publishing, the company that wholly owns the Santa Barbara News-Press, and arose out of an article that appeared in the December 2006 edition of the American Journalism Review entitled, "Santa Barbara Smackdown" The article offered a "behind-the-scenes look" at the "turmoil” engulfing the News-Press. The article described McCaw's efforts to 'silence' criticism by filing or threatening to file libel lawsuits.
In a case of life imitating the journalistic account of it, Ampersand filed a libel and trade disparagement lawsuit against Paterno for falsely implying that McCaw's personal agenda improperly influenced the newspaper's reporting.
Paterno filed a motion to dismiss the suit under California's anti-SLAPP statute. "SLAPP" is an acronym for strategic lawsuit against public participation. The purpose of the anti-SLAPP law is to preserve the rights of people not to be dragged through the courts because they exercised their constitutional rights. And of course, Paterno's article is protected by the constitutional entitlement to freedom of speech and freedom of the press.
Of course, Ampersand's lawsuit against Paterno had exactly that affect.
To prevail on her motion to dismiss the libel suit, Paterno had to make a threshold showing that her conduct occurred in furtherance of the constitutional right of free speech in connection with a public issue or an issue of public interest. Once she did that, the burden then would shift to Ampersand to demonstrate a probability of winning on its claim of libel.
In order to meet its burden of demonstrating that it would prevail on the libel claim, Ampersand sought to take testimony from Paterno and her editorial assistant and to obtain any documents "reflecting, relating or referring" to their preparation of the article. Ampersand also sought documents from the American Journalism Review relating to the article. Ampersand claimed this discovery was necessary to show Paterno's subjective state of mind regarding the truth or falsity of her statements.
The judge in the trial court ruled in Ampersand's favor on this issue. In today's 18 page opinion, the Court of Appeal decided that the trial judge was wrong in this regard, reasoning that Ampersand has not introduced sufficient evidence to establish a prima facie case of falsity or unprivileged statements and that consequently, the trial court erred in permitting discovery concerning Paterno’s actual malice in writing the article, which is an essential element of libel.
Perhaps in a comment on how preposterous Ampersand's lawsuit against Paterno is, the court noted:
It is ironic that Ampersand, itself a newspaper publisher, seeks to weaken legal protections that are intended to secure the role of the press in a free society. Newspapers and publishers, who regularly face libel litigation, were intended to be one of the 'prime beneficiaries' of the anti-SLAPP legislation.
The case now will go back to the trial court and the judge will have to reverse his order allowing Ampersand to inquire of Paterno. As a practical matter, that means the libel suit will be dismissed and Paterno is likely to recover from Ampersand her attorney's fees incurred up to this point in defending against it.
Updated at 9 p.m. Friday evening, June 13. Shelly Hurwitz, one of the attorneys representing Paterno responded to an e-mail inquiry for comment as follows:
We are thrilled with the Court's ruling, and are looking forward to the dismissal of this case against Ms. Paterno. The opinion is certainly a big victory for the First Amendment that could not have come at a better time in our history.
