Defamation and Tortious Interference Case

In the world of social media, a recent court of appeals case could be informative in the practice of family law and in issues around cyber bullying. The blogger in this case has become obsessed with the person who fired him. He has created a website with her name as included in the url. He has also directed urls very similar to the theatre to go to his website, where he has been blogging regularly (on average more once per month since 2011). In addition to the urls he also includes content that would make his website likely pop-up in a google/bing/whatever search. There can be no question, he is still actively trying to get people who might be looking into what is playing at the theatre to pay attention to his firing that occurred almost four years ago.

The court held that even though the theatre is a public entity, the primary issues in his blog were about his firing and how he thinks he should get some sort of big payout because he thinks his firing was unjust.

This round of appellate litigation focuses on the anti-SLAPP statute, which is a statute that protects speech that is a matter of public concern. The court does get to the heart of the claims about defamation and intentional defamation of business expectancy, i.e., doesn’t get into the heart of whether a person who goes to these extremes to create a website that focuses on being negative to another person can be required to take down the website based on a theory of defamation or tortious interference with business expectancy. The concurring opinion did go into a long discussion of defamation law.

The case, Johnson v. Ryan, No. 31837-1– Opinion Author – Lawrence Berrey; Concurring Judge: Siddoway; Dissenting Judge: Fearing;  Attorneys for Appellant – Robert Allan Dunn and Susan Nelson; Attorney for Respondent – Stacia Hofman; Appeal from Spokane Superior Court Docket No: 13-2-01362-7

Per the opinion in this case, James Ryan engaged in vitriolic internet blogging against Yvonne Johnson. She sued, he tried to assert an anti-Strategic Lawsuit Against Public Participation (SLAPP) defense, essentially that his speech was protected because it was a matter of public concern. The trial court agreed and dismissed Johnson’s claims, but the court of appeals disagreed, holding that Ryan’s blogging was primarily for a personal concern, not a public concern.

The reason why there was a question about personal vs. public concern was that Johnson was the executive director of the Spokane Civic Theatre.

Ryan was a former music director for the Theatre. He was hired and moved his family for a three-year term but within two months of his hiring his employment was terminated. The Theatre had received an anonymous email about Ryan’s nonmonogamous marriage and that Ryan used graphically nude photographs and text while engaging in online sex solicitations, including using his Theatre employee photograph and noting that he was employed by the Thetare in his ads. He also initiated some of his sexual solicitations while backstage on Theatre premises. The theatre claimed that connecting his “swinger lifestyle” with the theatre offended parts of the local community and reduced the Theatre’s donations.

Starting on October 18, 2010, Ryan began a public campaign to discredit Johnson for terminating his employment. He posted to his Facebook page, and then created a blog: thetyrannyofyvonne. At the time of writing this article, it is still up and Ryan has posted about it on his website. He also obtained websites similar to the theatre, but “.org” instead of “.com” which direct people to his blog.

On his blog he specifically makes statements about it being his hope that if Ms. Johnson were to look for work elsewhere that potential employers would see his website and not hire her, going so far as to invite potential employers to email contact him.

In response, Ms. Johnson filed a suit for intentional interference with business expectancy and defamation, seeking damages and injunctive relief. Ryan moved to get the matter reversed claiming all he was doing was providing a public forum for discussion and dissemination of commentary, complaints and general information related to the Theatre.

The trial court originally agreed with Ryan and ordered $10k in statutory and over $8k in reasonable attorney fees and costs.

Johnson appealed.

The Court of Appeals noted that the anti-SLAPP statute was designed to provide immunity from civil liability for claims based on good-faith communication with the government regarding any matter of public concern. The Washington Act is designed to prevent lawsuits brought primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of grievances. The goal is to strike a balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern.

Public Forum: The Majority notes that courts have readily found that the internet is a public forum.

Public Concern:

The court discusses the California statute and notes that there is a difference between the California and Washington Statutes because Washington uses “public concern” and California uses “public interest.” The court noted that when this is happened, it court is bound to conclude the deviation was purposeful. Washington and the federal courts have a well-developed law a “public concern” within the context of defamation cases and the court turns to those cases for determining this case.

The court cited Davis for the proposition that speech is of a public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community.” In the employment setting the court cited White v. State, 131 Wn.2d 1, 929 P.2d 396 (1997), “Whether an employee’s speech addresses a matter of public concern is determined by the content, form and context of the statement as shown by the entire record.” and Tyner v. DSHS, 137 Wn. App. 545, 154 P.3d 920 (2007).  “was the employee acting as an aggrieved employee, attempting to rectify problems in the employee’s working environment, or was he or she acting as a concerned citizen bring a wrong to light?”

The court also noted that previously the court had found that speech that only tangentially implicates a public issues is not a matter of public concern. (Citing Dillon, 179 Wn. App. 72).

Applying these principles, the court finds that Ryan’s speech is a lengthy and tedious chronology of a private dispute between himself and Johnson, his former boss with the primary intent to establish his employer was wrong to fire him. The court says the focus is about how Ryan believes he was wrongfully terminated and his desire for serious money and even though a theatre that requires public participation and donations is involved, that is not enough to transform a private employment dispute into a matter of public concern and not protected under RCW 4.24.525.

This means that Johnson now gets to proceed with her case for defamation and tortious interference with business expectation.

Concurring Opinion

Siddowy wrote a concurring opinion to emphasize two matters (1) there is nothing in the anti-SLAPP statute that demonstrates legislative intent to make substantive changes to the law of defamation and (2) construing “public concern” as broadly as California’s “public interest” standard will change Washington’s defamation law in a way that is inconsistent with the legislature’s intent to strike a balance between the right to file a lawsuit and the right to participate in matters of public concern.

The opinion is that the First Amendment already establishes a high bar and the anti-SLAPP statute wasn’t about increasing the burden, but in making it easier for a defendant to get out of a lawsuit that was clearly going to fail, allowing a defendant to escape some of the expenses and inconvenience associated with litigation.

The concurring opinion also notes that there is a difference in public interest vs. public concern. Interest is just an issue where the public is interested and not actions of public concern, chiefly those pertaining to the hear to self-government.

Dissent

The dissent believes that Ryan’s comments about Johnson is speech of a public concern and because of that Johnson fails to present a prima facie case of liability. The dissent believes that the Spokane Civic Theatre is an institution of public concern. The Theatre published an article introducing Johnson to the community in 2005 and later in 2010 praising Johnson for helping the theatre thrive despite the economy. They noted that Johnson also maintained her own website promoting her career. The dissent also noted that in his termination letter Johnson said that Ryan’s position had to hold himself up to the high public standards charged to the representatives of the Theatre.

The dissent also takes issue with the public concern vs. public interest approach taken by the majority, finding the terms to be synonymous. A brief review of this discussion appears that he wanted to apply California case law (which is probably why the majority and concurring opinion discussed it as much as they did).

The dissent disagrees with the idea that the main theme of Ryan’s blog is to “coerce, through slander, a monetary settlement[.]” Instead the dissent believes that Ryan’s blog’s dominant theme is the mismanagement of the theatre. Although the dissent does agree that Ryan is obsessed with vengeance and the attacks are unfair and is attempting to get some financial settlement but that all of this does not exclude him from protection from the anti-SLAPP statute.

 

Update: On April 8, 2015, Mr. Ryan contacted me about this blog. He believes that the facts I described are not correct or that they should not be stated as facts and I should have the words “according to the court” placed before every fact. As this blog post is about the court opinion, I believe that it is clear that the facts represented are primarily according to the court and it is unnecessary to add such information.  Nevertheless, at the start of the court’s description, I did add “Per the opinion in this case[.]” It should be noted that out of curiosity, I did look at his blog, and the reference to how often he has blogged is my own reference. I based it solely on looking at the blog archive which shows a month and how many posts were made in that month. In reviewing that I notice the only months since he started his blog that he hasn’t blogged are in 2014, April, July and December; in 2012 September and December;  and in 2011 after he started his blog, September was the only month he didn’t blog. Thus, he has not blogged a total of six months, in about four years. He has regularly blogged two or three times in one month and as many as ten times in one month (July 2013). Based on that, I feel comfortable with my statement that he has blogged more than an average more than once per month.  

My writing about this case isn’t intended to be about the facts of this particular case. I don’t have all the facts. I doubt “facts” in this case exist in an undisputed manner and a judge will have to weigh the credibility of the witnesses and make a finding as to what facts are more probable than other facts. 

The purpose of this blog is not the facts of this individual story. The compelling issue is what are the possible resources exist when individual takes to the internet to attack another person or entity. Even when/if concerns are valid, can they be taken too far? If they are directed at individuals, including but not limited to, having the targeted person’s name in a URL, can a person be required to stop engaging in the behavior. At what point do behaviors cross a line from acceptable airing of a concern to harassment and cyber-bullying? In the world of the internet where do we draw lines limiting speech? 

A tangential issue was discussed on an episode of Reply All, a podcast aired an episode on April 1, 2015, #18 Silence and Respect that discussed a woman who had taken a photo in jest that was exploded over the internet and ended up costing her her job and what steps she could take.  Here it wasn’t an individual but the viral nature of the internet that interfered with her reputation and her ability to find work.