Law Professor Blogger Wins Anti-SLAPP Ruling, But It’s Hard To Celebrate The Win–Welch v. USD
The good news is that, so far, I’ve never actually been sued. The bad news is that, over the years, I’ve had about a dozen stressful incidents where I’ve faced unreasonable legal demands under the threat of years of unhappy and ruinous litigation. These threats are sometimes also shared with my dean, the SCU General Counsel’s office, and my colleagues. Sometimes I can see the complainer’s point, even if it’s mostly ridiculous, and I try to resolve these demands by making inconsequential changes that nevertheless placate the plaintiff. More frequently, I’ve had to stand firm and effectively say “bring it.”
But like most rational people, I don’t really want anyone to “bring it” against me, even if I can easily secure outstanding legal representation and I’m 100% confident that I’ll win in court with an attorneys’ fee award. My time is valuable and under even more pressure due to my wife’s health, and typically the best “win” in these circumstances will be to maintain status quo after years of judicial proceedings. It’s this chilling effect–that I don’t want to spend my scarce and valuable time in a meaningless battle over an obvious misreading or overreaction to my words–that the legal system hasn’t figured out how to solve. Anti-SLAPP protection is swell, and I’m an active and vigorous supporter of anti-SLAPP laws. However, it would be even better if we could short-circuit court proceedings altogether in bogus situations, and I haven’t figured out how to do that yet.
In what I imagined seemed like a routine post, no more risky than the thousands he had done before, in 2012 he blogged about Welch v. State Teachers’ Retirement System, 203 Cal.App.4th 1 (2012). [To minimize my risk of becoming the next defendant, the rest of my lawsuit recap will stick incredibly closely to the court’s words.] Welch demanded Martin retract the post. “Martin responded that he believed all of the factual statements contained in his blog article were derived from Welch III, but invited her to let him know if there was any particular factual statement in the blog article that she believed was not a fact contained in Welch III, but she did not do so….Nearly one year later, she also complained to Dean Stephen Ferroulo, asking Ferroulo review Welch III and the blog article. Shortly after Ferroulo replied that it appeared the article was reasonably consistent with the facts as stated in Welch III, Welch filed her lawsuit” against Martin, the University of San Diego, its President (Mary Lyons), and its Law School Dean (Stephen Ferruolo)). The lawsuit focused on six statements in Martin’s blog post:
A. Martin’s statement “let’s read between the lines a little bit to figure out what’s really going on here.”
B. Martin’s statement that the District placed her on administrative leave with pay while it investigated allegations of her erratic behavior, including hitting and kicking children at the middle school, after which Martin stated it was “[m]y strong sense is that these are not new allegations, and that stuff has been going on for a while. Perhaps consistent with her taking the hat of a kid that led to her getting attacked.”
C. Martin’s statement, which commented on Welch’s claim that Welch’s principal had told her that (if she filed a complaint about school safety) he could produce “20 kids who would say that she hit and kicked them,” that “maybe the principal was stupid enough to make such a threat…. Or maybe Welch is just making things up. Let’s try to remember that when we’re assessing equity and credibility.”
D. Martin’s description of the original phone call to CalSTRS in which “Welch says she made her phone call and was falsely told she didn’t qualify for benefits. A call to an unnamed person on an unknown date with no evidence other than Welch’s testimony.”
E. Martin’s statement that “Welch may be totally disabled and unable to work. But that didn’t stop her from prosecuting her case in pro per. Which she does successfully.”
F. Martin’s statement that “maybe all of this is complete justice. But maybe not. Depends profoundly upon your point of view.”
Martin moved to strike Welch’s complaint under California’s anti-SLAPP law. In response:
Welch opposed the motion, apparently contending she could demonstrate probable success on the merits because (1) the fair reporting privilege did not apply because the article was a “deliberate distortion[ ]” of Welch III written with actual malice, and (2) the statements about which she complained were actionable statements of fact that were demonstrably false. She does not contest that her claims arose from Defendants’ protected activity.
The appellate court held that statements D and E were protected by the fair reporting privilege. The other four statements were characterized as opinion. As we’ve seen with several other cases, especially in California, the court credits the fact that Martin linked to his source–in this case, the opinion–to support the determination that Martin’s characterizations were opinion.
On the surface, this is a nice courtroom victory for legal bloggers. It suggests that legal blogging should be protected both by the fair reporting privilege (see also this New York ruling to that effect) as well as California’s strong anti-SLAPP law.
However, I’m still not smiling. I asked Prof. Martin for his comments about the lawsuit and he wrote me:
Being sued is a hassle. It’s even more of a hassle when you’re sure you’re right and when you’re being sued for doing something that you hope is a public service. It’s a hassle with your Dean. It’s a hassle with your General Counsel. It’s a hassle during the years the lawsuit goes on. It’s a hassle even when you’re pretty confident – as I was – that everything will turn out fine in the end.
You have the same position as I do, and do a similar thing, so I’m quite confident you understand. The good thing is that people like us have tenure, so we don’t have to worry (much) about our jobs; have experience with the legal system, so don’t freak out as much as a “normal” person would; and are familiar enough with the underlying concepts (anti-SLAPP motions, the First Amendment, etc.) so we don’t feel especially ignorant, vulnerable, and/or at the whim of decision makers we don’t understand. Plus, here in California, we’ve got very strong anti-SLAPP protections, which I’ve always appreciated, and appreciate even more having now actively used them on my own behalf. (I’ve won anti-SLAPP motions on behalf of clients plenty of times, but it’s a bit different when you’re filing one to protect yourself.)
So all that’s great.
Nonetheless, despite all these wonderful things, the experience leaves me feeling even worse than normal for your Average Joe who’s sued by a pro se litigant in a meritless lawsuit. Sure, they’ll eventually win. But you wish there were even more things that we – or the system — could do for ‘em.
On my part, I’m sure I’ll take even more pro bono cases than I already do. Maybe that’s my effort to turn lemons into lemonade.
But, look, in the end, the system worked, and the judiciary did precisely the thing we would want it to do. Notwithstanding how much I may critique particular opinions or even systemic portions of the judiciary, I’m one of its biggest fans. So I had faith. Faith that, thankfully, was rewarded.
Who could ask for more, eh?
Martin hits on a more general point that deserves your attention. The disruption and damages suffered by defendants can be life-altering, but harmed defendants rarely get the same kind of press coverage as harmed plaintiffs. For this reason, in allocating my professional time, I prioritize giving a voice to improperly targeted defendants and to seek legal tools that will help these defendants (see my Forbes post for more on this). I urge you to join me in that cause; or at least, to keep the consequences of overenforcement in mind whenever you have a gut reaction that “there oughta be a law.”
More commentary on Martin’s case from Jonathan Turley.
Case citation: Welch v. University of San Diego, 2015 WL 1542078 (Cal. App. Ct. Apr. 2, 2015)