Washington State Court of Appeals rejects anti-SLAPP claim of blogging ex-employee

Digest Commentary First Amendment

Johnson v. Ryan, No. 31837-1-III (Wash. Ct. App. Mar. 9, 2015)

Opinion

The Washington State Court of Appeals rendered a decision in a case involving the interpretation of Washington’s anti-SLAPP statute in the context of a lawsuit for defamation and tortious interference with business expectancy brought by the director of a performing arts theatre against a blogging ex-employee. The Court of Appeals reversed a trial court judgment which had dismissed the lawsuit under the anti-SLAPP statute.

The Washington State Court of Appeals held that the ex employee James Ryan’s blogging against Yvonne Johnson, the director of the theatre, was not for public concern and that Ryan was not entitled to assert the anti-SLAPP statute to dismiss Johnson’s claim. In so holding, the court narrowly interpreted the “public concern” requirement, and distinguished the Washington anti-SLAPP statute from California anti-SLAPP statute, which uses the phrase “public interest” rather than “public concern.” The anti-SLAPP statute allows a defendant to dismiss a plaintiff’s defamation claim and requires a plaintiff to pay $10,000 for damage if the defendant’s statement is “in connection with an issue of public concern.” RCW 4.24.525(d). 

DMLP provides an overview of the anti-SLAPP statute. Technology and Marketing Blog provides an overview of the case and criticizes the decision for evaluating the defendant’s motive for making a negative statement against the plaintiff and failing to recognize that the defendant’s statement was a matter of public concern. Lexology and Lexology feature different cases in Washington related to the anti-SLAPP statute.

Yvonne Johnson is the executive director of the Spokane Civic Theatre (the Theatre), a not-for-profit performing arts theatre In 2010, she hired James Ryan as full-time music director. However, less than two months after the hiring, she terminated his employment. According to Johnson, the Theatre found out that Ryan engaged in online “sexual solicitations” and disclosed his affiliation with the Theatre during these activities. Ryan admitted that he posted a listing on Craigslist for sex, but denied revealing any information that identified his name or his employer. Soon after termination, Ryan began a public campaign to discredit Johnson by blogging negatively about Johnson and, in addition to that, posting negative comments on two websites that had domain addresses similar to that of the Theatre’s official website. As a result, Johnson sued Ryan for defamation and tortious interference with business expectancy and Ryan defended by filing a motion to strike Johnson’s suit by asserting the anti-SLAPP statute.

The court rejected the applicability of the anti-SLAPP statute in this case, reasoning that Ryan’s negative statements, as they were mainly about his employment termination, were not a matter of public concern. Although California case law might have pointed to a different outcome, the court reasoned that the Washington anti-SLAPP statute differed from the California statute to the extent that the Washington statute used the word “public concern” and not “public interest.” After analyzing a number of Washington cases, the court defined “public concern” narrowly and justified its narrow interpretation within the context of defamation law and free speech right.

Judge Siddoway concurred, but wrote a separate opinion to emphasize two points. First, the judge noted that there was no legislative intent to make substantive changes to the law of defamation when drafting the anti-SLAPP statute. Thus, the anti-SLAPP statute should not alter a plaintiff’s right to redress for defamatory falsehoods. Second, interpreting “public concern” as broadly as “public interest” in the California statute would alter the defamation law and thus should not be interpreted so broadly.

Judge Fearing, on the other hand, dissented. The judge found that Ryan’s blogging contained elements of public concern and that the court should not have weighed the motivation of the defendant in determining whether his speech was of public concern.

This case, along with other cases that are currently appealed to the Washington Supreme Court, is significant in clarifying the scope of the Washington anti-SLAPP Statute. Given that the Washington statute was modeled after the California statute, it will be interesting to see how the Washington Supreme Court will ultimately decide on this court’s distinuishing between the two statutes.