Theater Employee’s Post-Termination Blogging Isn’t a Matter of “Public Concern”

March 23, 2015 · by Venkat Balasubramani · in Content Regulation

This is a long-running and vitriolic dispute between James Ryan and Yvonne Johnson. Johnson was the director of the Spokane Civic Theater. She hired Ryan to be the music director. A few months after the hiring, Johnson fired Ryan allegedly because he posted a craigslist listing for sex and he allegedly included his theater affiliation in his posting. Ryan disputed that he ever mentioned the theater. He said that someone he met on craigslist found his theater affiliation and provided it to an anonymous emailer (blackmailer), who in turn provided it to Johnson.

Ryan asserted legal claims against the theater. He also sought to publicize his employment dispute with the theater, as well as his view that Johnson was a bad executive and a bad person to work for. He made his posts available on several sites (spokanecivictheater.org and spokanecivictheatre.org, thetyrannyofyvonne.blogspot.com, and civicdoody.com). [As a sidenote: the theater brought a UDRP claim against Ryan and lost.] Johnson was allegedly trying to seek a job elsewhere and she claims that Ryan’s posts hindered this effort. Ryan was admittedly aware that his posts ranked high for Johnson’s name and included a pointed message on his blog that:

If you have arrived at this page because you are considering Yvonne A.K. Johnson [for a job] please feel free to contact me. I would be happy to put you in contact with individuals [of] status within the community [who] would lend supporting testimony to what you will read [here. I can be] reached at civicdoodyspokane@gmail.com.

Johnson sued Ryan, asserting claims for defamation and intentional interference with business expectancy. Ryan brought an anti-SLAPP motion. The trial court agreed with Ryan. The court of appeals, in a fractured set of opinions, reverses.

The majority says there is no dispute that his statements posted on a blog are made in a “public forum”. The key question is whether the statements were a matter of “public concern” as that term is used in Washington’s anti-SLAPP statute. The court notes the difference between the language used by California anti-SLAPP statute (on which the Washington statute was modeled) (“public interest”) and language in the Washington statute (“public concern”) and says this counsels in favor of rejecting California courts’ precedent on this issue.

Washington courts have used the phrase “public concern” in the context of speech cases, both in the context of defamation lawsuits and public employee claims for retaliatory discharge. To be a matter of public concern, the court says it must be “fairly considered as relating to any matter of political, social, or other concern to the community.” Blogging to vindicate your private concerns is not sufficient:

Here, the primary content of Ryan’s speech is a lengthy and tedious chronology of a private dispute between himself and Johnson, his former boss. The primary intent of the speech is not some lofty public good, but merely establishing that his employer was wrong in firing him. The form of the speech is a blog, useful for conveying either private or public concerns. The context of the speech arises out of a private employment dispute. Ryan primarily complains about how he was wrongfully terminated, what he has endured through various agency and court actions, and his desire for “serious money.” The mere fact that these dominant themes are occasionally interspersed with collateral issues of protected public speech—e.g., the executive director of a theatre that depends on public participation and donations has a tyrannical management style—is not enough to transform a private dispute into a matter of public concern. [emphasis added]

The concurrence says that while free speech is important, the court should take into account Johnson’s interests as well. This judge says that over time, defamation law has built up numerous protections for speakers, and courts should not construe anti-SLAPP statute to build in additional hurdles for plaintiffs aggreived by harmful speech (beyond weeding out non-meritorious claims). According to this judge, construing “public concern” as broadly as “public interest” (from California law) would alter the scope of defamation law and upset the balance the legislature sought to strike when it enacted the anti-SLAPP statute.

The opinion engages in a slight detour and talks about whether the anti-SLAPP statute as a whole imposes a new burden on defamation plaintiffs, but ultimately, the opinion says that the intent of the anti-SLAPP law is to adopt a meaning of “public concern” that is consistent with usage of the term in the First Amendment context (i.e., to identify speech “that is entitled to heightened protection under the First Amendment”). Defamation law has imposed heightened standards on defamation plaintiffs depending on whether the plaintiff was a public official or public figure. While “public concern” wasn’t always the crucial metric for whether speech is entitled to protection, it plays some part and even a central role in public employee cases.

The dissent rightly faults the majority for focusing on Ryan’s motivations for his blogging. It notes that the theater held itself out in the public eye, as did Johnson (who maintained her own website). The fact of Johnson’s hiring received press coverage, and the fact of Ryan’s firing was justified by the theater on the basis that Ryan’s actions would affect the theater’s perception in the public. The organization affected a large number of the public, ranging from volunteers to patrons to visitors. The parties had extensive legal wranglings (a wrongful termination claim; unemployment claim; a UDRP proceeding) and the overwhelming majority of Ryan’s posts were about this dispute and Johnson’s role in the dispute. Ryan attacked Johnson’s character, but Johnson herself testified that her character and integrity were “of utmost importance to her position as executive director”.

The dissent looks to dictionary definitions and case law, and says that “in connection with” an “issue of public concern” signals that this phrase should be interpreted broadly. Washington courts have typically interpreted the phrase broadly. The “public concern” test used in the public employee context is a poor fit because it’s looking to strike a balance between government as employer and the public’s interest in receiving information about the proper functioning of the government. The dissenting judge implicitly advocates for adoption of the test set out in Rivero v. American Federation, which has been cited previously by at least one Washington decision. This case outlines a few different ways in which a statement can be determined to be in the public interest:

statements where the subject is “in the public eye”
statements involving conduct that “affects a large number of people beyond direct participants”
statements entailing “a topic of widespread, public interest”

Ryan’s statements qualify under at least two of these tests. The judge says that Ryan may not be a sympathetic speaker, but this should not determine whether he is entitled to protection under the statute:

I recognize portions of James Ryan’s blogs indirectly seek a financial settlement. I agree with the majority that James Ryan is obsessed with vengeance. I concede that Ryan’s attacks on Johnson are unfair. For these reasons, James Ryan is not a sympathetic defendant, but an undesirable defendant needs the protection afforded by the anti-SLAPP statute more than does an attractive defendant.

Even if coercion and vengeance were the prime motivation of James Ryan, the anti-SLAPP statute does not exclude speech from its protection if the speaker seeks to gain money, as long as the content of the speech is a matter of public concern. A fixation with revenge does not automatically close the door to a determination that the writing is of public concern. No language in RCW 4.24.525 excludes, from the statute’s shield, speech motivated by greed or revenge. No case law supports such a contention.

Given a seeming split in Washington courts, this case is a possible candidate for review by the Washington State Supreme Court. It has several anti-SLAPP cases pending already. A ruling that adopts a narrow view of “public concern” would dramatically lessen the effectiveness of the statute, which makes this case one to watch. (And a good candidate for amicus participation.)

A few things stood out about the dispute: (1) as the dissent notes, the theater as well as the director are in the public eye through their own efforts; (2) the majority of Ryan’s statements are about his legal tussles with the theater and with Johnson; (3) Johnson does not actually identify what statements are false; and (4) Johnson’s lawyers accuse Ryan of being a “cyberbully”. The dispute is reminiscent of Ellis v. Chan, the Georgia case where a plaintiff who was criticized for her copyright enforcement tactics accused a message board operator of stalking.

It’s tough to conclude that many of Ryan’s statements were not a matter of public concern, unless one were to adopt the most cramped definition of that term. A 2013 Spokesman Review article noted that Johnson had been fired, and further that “[the] Ryan situation clearly divided the artistic community.” (See “Civic Theatre board fires Artistic Director Yvonne Johnson“.) The “public concern” test from employment cases is a poor fit for the reasons stated by the dissent. “Valuing” speech and finding that only “high value” speech falls under the anti-SLAPP statute is probably not something we want courts doing, even though they do so from time-to-time.

It would have been good for the court to sift through the statements and determine which were capable of being defamatory. Setting aside any factual disputes, does Johnson have a case in the first place? The court’s failure to focus in on any even arguably false statement makes me think she didn’t have a viable case on the merits. To the extent Johnson is trying to assert a tortious interference claim based on true statements, I don’t know if Washington cases have specifically address this issue, but that also raises First Amendment concerns (See, e.g., “$60,000 Verdict for Blogging the Truth About A Person Intending to Get Him Fired — Reversed”.)

The majority opinion also gives short shrift to the fact that blogging may be a form of advocacy, and indeed was in this case. In the modern era, litigants, and particularly those without deep pockets, take to the internet to drum up support for their cause. Surely the anti-SLAPP statute should reach claims asserted by litigants who wish to punish their opponents for engaging in such advocacy. There’s a prong of the anti-SLAPP statute that reaches “statements made regarding any issues under consideration by any branch of the government”. While both the majority and dissent assert that the first three subsection of the anti-SLAPP statute (among which the above-quoted language is found) deal with statements made only to the government, neither cited authority for this proposition. At a first glance this did not seem obvious to me. For what it’s worth, the California statute has a similar provision and case law from California courts find some extra-judicial statements to be protected under the California statute. See, e.g., Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, 184 Cal. App. 4th 1539, 1549, 110 Cal. Rptr. 3d 129, 138 (2010). (The Washington statute users the word “submitted,” which perhaps lends credence to an argument that it only covers statements made in a proceeding, but the overall structure of the statute indicates that it broadly covers efforts to drum up public support.) Even if the statements about the legal dispute and the parties’ conduct in the dispute did not fall within the protections of the anti-SLAPP statute, First Amendment principles counsel in favor of treading carefully when imposing liability.

Ultimately, Johnson comes across as thin skinned, painfully oblivious to the Streisand Effect, and not much of a First Amendment stalwart. I may be wrong, but those don’t seem like particularly good traits for someone in charge of a community theater.

Eric’s comments:

* California courts have adopted a bounded view of “public concern” in the consumer review context, so this ruling might find unexpected support from California’s law.
* Nevertheless, even under the narrower definition, Venkat makes some great points why this dispute was a matter of public concern. The leadership of a high-profile non-profit organization potentially affects broad chunks of the community, ranging from donors to prospective employees.
* Rulings like this reinforce that we need a federal anti-SLAPP law to promote national harmonization.

Case Citation: Johnson v. Ryan, 2015 WL 1259907 (Wash. Ct. App. Mar. 19, 2015)

Talk Slides on Section 230, Anti-SLAPP Laws and Housing Anti-Discrimination

Two More Cases Hold That Anti-SLAPP Laws Protect Consumer Reviews

Ripoff Report and Topix Postings Protected by California’s Anti-SLAPP Law–Chaker v. Mateo

We Need Federal Anti-SLAPP Legislation, But Sen. Kyl’s “Free Press Act of 2012? Isn’t the Answer (Yet) (Forbes Cross-Post)

Pointing Out Possible Hypocrisy by a Self-Claimed Sextortion Expert Protected by Anti-SLAPP Laws–Backlund v. Stone

Satirical Anti-Birther Blog Post Protected by DC’s Anti-SLAPP Law–Farah v. Esquire

Texas Ruling Shows the Benefits We’d Get From a Federal Anti-SLAPP Law–American Heritage Capital v. Gonzalez

Ninth Circuit Upholds Anti-SLAPP Ruling for Blogger/Griper–Sedgwick v. Delsman

CA Anti-SLAPP Cases Involving Consumer Reviews as Matters of Public Concern

Dentist Review on Yelp Gets Partial Anti-SLAPP Protection–Wong v. Jing

Recent Anti-SLAPP Developments