Yvonne A. K. Johnson v. James P. Ryan ( 2015 )

PEL‘M}
MARQE E9, 2%} S
in the Office of the Cierk ot‘€oart
WA State Court of Appeais, Division til.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
YVONNE AK. JOHNSON, ) No. 318374-111
Appellant, %
V. 3 PUBLISHED OPINION
J AMES P. RYAN, %
Respondent. 3
LAWRENCE-BERREY, J. —— James Ryan engaged in vitriolic Internet blogging
against Yvonne Johnson. Johnson sued Ryan for defamation and tortious interference
with business expectancy. Ryan defended the suit, in part, by asserting the anti-SLAP?
statute.’ As permitted by that statute, Ryan filed a prediscovery motion to strike. He
argued that Johnson’s claims should be dismissed because his speech was protected
speech in that his attacks against Johnson were matters of public concern. The trial court
agreed and dismissed Johnson’s claims. We hold that Ryan’s blogging was primarily for
personal concern, not public concern, and reverse the dismissal of Johnson’s claims.
1 Strategic Lawsuit Against Public Participation. RCW 4.24.510.
No. 318374-111
Johnson v. Ryan
FACTS
As discussed later, we accept the facts and all reasonable inferences in the light
most favorable to Yvonne Johnson, the party resisting the motion to strike.
The Spokane Civic Theatre (the Theatre) is a not-«fonprofit, performing arts theatre
iocated in Spokane. The Theatre is a private foundation receiving support from private
donors and operating with an endowment. On a donation web page, the Theatre notes:
Revenue from programming covers only 50 percent of our operating costs.
We depend on the support and commitment of our community to make up
the essential difference.
Clerk’s Papers (CF) at 29.
In 2005. the Theatre hired plaintiff Yvonne Johnson as its executive artistic
director. Johnson is a highly acclaimed theatre veteran who was selected from scores of
applicants. At the time of her hiring, the Theatre was on the cusp of financial ruin. By
2010, despite the economic recession, Johnson had doubled revenue for the Theatre. This
economic feat was accomplished through a significant increase in ticket sales, expansion
of the Theatre’s training camp for chiidren, and numerous fundraising endeavors.
Johnson’s financial acumen and ingenuity allowed the Theatre to expand its full-time
staff by several positions, including a full-time music director.
On August 19, 2010, Johnson hired defendant James Ryan as full-time music
No. 31837-l-III
Johnson 12. Ryan
“PUBLIC PARTICIPATION” UNDER ANTI-SLAP]? STATUTE
RCW 4.24.525(2) identifies the communications protected by the statute.
Subsections (a) through (c) involve communications to government. Subsections (d)
and (e) involve speech in other contexts. RCW 4.24.525 reads, in relevant part:
(2) This section applies to any claim, however characterized, that is
based on an action involving public participation and petition. As used in
this section, an “action involving public participation and petition” includes:
(d) Any oral statement made, or written statement or other document
submitted, in a place open to the public or a public forum in connection
with an issue of public concern; or
(e) Any other lawful conduct in furtherance of the exercise of the
constitutional right of free speech in connection with an issue of public
concern.
(Emphasis added). Because this case concerns “written statements” instead of
“other anful conduct,” our review of the lower court’s dismissal is iimited to
RCW 4.24.525(2)(d). We, therefore, next examine the “public forum” and “public
concern” requirements of RCW 4.24.525(2)(d).
Pubiic Forum. Courts have readiiy found that the Internet is a public forum.
ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993, 113 Cai. Rptr. 2d 625 (200i).
Hatch v. Superior Court, 80 Cai. App. 4th 170, 201, 94 Cal. Rptr. 2d 453 (2000) noted
that Internet communications are “classicai forum communications.”
11.
No. 31837-1411
Johnson v. Ryan
Public Concern. Because the California anti—SLAP? statute serves as a model for
the Washington Act, some authorities have applied the borrowed statute rule to interpret
the Washington Act. SeeAlosko Structures, Inc. v. Headland, 180 Wash. App. 591, 599, 323
P.3d 1082 (2014); Fielder v. Sterling Par/c Homeowners Ass’n, 914 F. Supp. 2d 1222,
1231 11.4 (WI). Wa. 2012); Aronson v. Dog Eat Dog Films, Inc, 738 F. Supp. 2d 1104,
1110 (WI). Wa. 2010). “Under the borrowed statute rule, courts find that when the
legislature borrows a statute from another jurisdiction, it itnpltcitiy adopts that
jurisdiction’s judicial interpretations of the statute.” Wyrwich, supra, at 690. However,
Caiifornia’s statute uses the phrase, “public interest,” whereas Washington’s statute uses
‘ the phrase, “public concern.” “‘[there the legislature modifies or ignores a provision of
the borrowed statute, it implicitly rejects that provision and its corresponding case law.”
Id. “The Washington State Supreme Court has found that when the legislature deviates
from a model act, it is “bound to conclude” that the deviation ‘was purposefui’ and
evidenced an intent to reject those aspects ofthe model act.” Id. (citing State 12. Jackson,
137 Wash. 2d 712, 723, 976 P.2d 1229 (1999)). We also note that both Washington and
federal authorities have defined “public concern” in the context of defamation law.
Accordingly, when determining whether speech or conduct is of “public concern,”
Washington courts should focus on well—developed Washington and federal decisional
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No. 31837-1-111
Johnson v. Ryan
law rather than California decisions.2
Speech is of public concern when it can “ ‘ be fairiy considered as relating to any
matter of political, sociai, or other concern to the community.” ” Davis, 180 Wn. App. at
531 (quoting Snyder 12. Phelps, 562 US. 443, 1.31 S. Ct. 1207, 1216, 179 L. Ed. 2d 172(2011)). For purposes of analyzing federal authorities, Alaska Structures quotes
Weinberg i2. Fet‘sel, 110 Cal. App. 4th 1122, 1132, 2 Ca1.Rptr 3d 385 (2003):
First, “public interest” does not equate with mere curiosity. (Time,
Inc. v. Firestone, [424 US. 448, 454-55, 96 S. Ct. 958, 47 L. Ed. 2d
154 (1976)]; Briscoe v. Reader 19 Digest Association Inc, (1971) 4
Ca1.3d 529, 537 [93 Cal.Rptr. 866, 483 P.2d 34].) Second, a matter
ofpublic interest should be something of concern to a substantial
number of people. (Dun & Bradstreet v. Greenmoss Builders, [472
US. 749, 762, 105 S. Ct. 2939, 86 L. Ed .2d 593 (1985)].) Thus, a
matter of concern to the speaker and a relatively smalt, specific
audience is not a matter of public interest. (tau; Hutchinson v.
Proxmz‘re (1979) 443 US. 111, 135 [61 L.Ed.2d 41}, 431, 99 S.Ct.
2675].) Third, there should be some degree of closeness between the
challenged statements and the asserted public interest. (Connie/c v.
Myers(1983) 461 US. 138, l48~149 [75 L.Ed.2d 708, 720421., .103
S.Ct. 1684]); the assertion of a broad and amorphous public interest
is not sufficient. (Hutchinson v. Proxmire, supra, 443 US. at p. 135
[61 L.Ed.2d at p. 431]). Fourth, the focus of the speaker’s conduct
shouid be the public interest rather than a mere effort “to gather
2 In a very recent decision interpreting RCW 4.24.525, our Supreme Court stated
that the Washington and California statutes had similarities but also “significant
differences,” the legislative purpose of the Washington and Catifornia statutes is
different, and “[o]ur legislature thus phrased its findings more narrowly than
Catifornia’s.” Henne v. City ona/u'mu, 341 P.3d 284, 289 (2015).
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No. 31837—1—Hl
Johnson v. Ryan
53
ammunition for another round of [private] controversy . . . .
(Connick v. Myers, supra, 46} U.S. at p. 148 [75 L.Ed.2d at p. 72lj.)
Finally, “those charged with defamation cannot, by their own
conduct, create their own defense by making the claimant a public
figure.” (Hutchinson v. Proxmire, supra, 443 US. at p. £35 [61
L.Ed.2d at p. 431].)
Alaska Structures, lSO Wn. App. at 602—03.
Our own courts have discussed the meaning of “public concern” in the context of
free speech rights. in White v. State, l31 Wn.2d l, 929 P.2d 396 (1997), the court held
that the challenged speech was a matter of public concern. There, Judy White was a
secretary/ clerk typist at a state-run nursing home. Id. at 4-5. After being so employed for
several years, the nursing home hired Evelyn Blanchard to be the director of nursing
services. Id. at 5. The working relationship was often strained between White and
Blanchard. In 1988, a resident of the home became very disruptive and behaved in a way
that might harm himself and others. Id. Eventually, Blanchard directed that the resident
be placed in a restraint jacket. Id. The jacket was in place for a couple hours until the
home’s medical director refused to sign an order permitting its use. Ultimately, White
fried an incident report alleging that Blanchard committed patient abuse in authorizing the
use of the jacket. Id. at 6; After an outside investigation, the allegation was dismissed.
Soon after, White was transferred to a different facility. Unbeknownst to her, the transfer
had been contemplated months before the incident report. White sued for wrongful
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No. 31837~1~Hl
Johnson v. Ryan
transfer. The trial court granted the home’s summary judgment motion. On appeal, our
high court affirmed the dismissal on causation grounds. Prior to reaching causation,
however, the court held:
Whether an employee’s speech addresses a matter of public concern
is determined by the content, form and context of the statement, as revealed
by the whole record. Connick, 461 US. at 14748. Content is the most
important factor.
The content of White’s speechmsuspected abuse of a nursing home
patientminvoives an issue of public concern. The public concern over
proper care of vulnerable nursing home patients is reflected in RCW
70.124, a statute which requires nursing home employees to report alleged
abuse or mistreatment of nursing home patients. The fact that an
investigation finds the report of suspected abuse to be without merit does
not affect the importance of the content to the public,
The record shows that White and Blanchard did not get along and
that White criticized Blanchard on a number of occasions. . . . The fact that
White may have had a personal interest in reporting the incident does not
diminish the concern the public would have in this matter.
Id. at i l—i3 (citations omitted).
in Alpine Industries Computers, Inc. v. Cowles Publishing Co, 1 14 Wash. App. 371,
57 P.3d l 1.78 (2002), this court held that the challenged speech was a matter of public
concern. There, a reporter for the SpokesnraitwReview wrote a story about a recent federai
court decision favoring Microsoft over a local company, Alpine industries Computers,
inc. The facts from the story came from the federal. court file and primarily was based
upon the judge’s memorandum opinion. Id. at 376. The gist of the story was that
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No. 31837-1411
Johnson 12. Ryan
Microsoft obtained a large judgment against Alpine for selling pirated software and that
Alpine°s owner had acknowledged that he had wrongfully sold counterfeit software. Id.
at 374-75. The company brought suit against the newspaper’s owner for defamation. In
determining whether the story was of “public concern,” we wrote:
Whether an allegedly defamatory statement pertains to a matter of
pubtic concern depends on the content, form, and context of the statement
as shown by the entire record. Dan (it Bradstreet, 472 U.S. at 761. Here,
the challenged story reiates to a court decision resolving an intellectual
property dispute between a major software manufacturer and a locai retailer.
Viewed narrowly, the story pertains to a private dispute between two
business entities. In a broader context, however, the dispute touches on a
matter of public importance, software piracy. The pubiic concern is
heightened by the fact that Alpine apparently sold counterfeit software to
the general consumer. In an age where the use of personal computers is
widespread, the retail distribution of pirated software is a matter of acute
importance to general consumers. This is a matter where the First
Amendment piays a role in ensuring the free flOW of information to the
public. Accordingly, the Dan & Bradstreet factors indicate the Aipine case
was a matter of pubiic concern deserving of heightened protection.
1d. at 39394 (citation omitted). Other cases where we held that the challenged speech
involved a matter of public concern include Davis, 180 Wn. App. at 530 (Because
nonviolent boycotts are protected by the First Amendment, because the boycott was a
form of protest of Americas role in resolving the Middie East conflict, and because the
plaintiff sought the remedy of injunctive relief, the speech was protected under
RCW 4.24.525); and Sprain v. Taft, 180 Wash. App. 620, 632, 324 P.3d 707 (2014) (Former
l6
No. 31837-l-lil
Johnson v. Ryan
supervisor’s alleged defamatory statements against coworker were public concern
because the statements, made in connection with his political campaign, could fairly be
considered as relating to a matter of political, social, or other concern to the community).
In contrast, in Tyner v. Department of Social and Health Services (DSHS), I37
Wn. App. 545, i54 P.3d 920 (2007), we held that the challenged speech did not involve a
matter of public concern. There, Paula Tyner was an administrator for a DSHS facility
that cared for adults with developmental disabilities. Id. at 552. In the course of her
employment, Tyner investigated an employee’s sexual harassment complaint. Id. at 552»
53. Later, human resources directed that the complaint be investigated further by a
person a step above Tyner’s rank. Id. at 553. T yner commented that the complaint
should not be forwarded to her supervisor, Jody Piiarski, because Tyner believed Pilarski
would not do a thorough job. Id. Human resources disagreed and assigned the
investigation to Pilarski. Id. During the course of this investigation, Pilarski received
numerous complaints that Tyner had created a hostile work environment. Id. at 553-54.
As a result of these complaints, Tyner was reassigned to region 5 headquarters in
Tacoma. 1d. at 5 54. Due to budget cuts, Tyner’s position was eliminated and she was
given different job duties at a different facility. Tyner sued. in her suit, Tyner claimed
that she was retaliated against for exercising free speech; specifically, her comment that
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No. 31837-I-HI
Johnson v. Ryan
her supervisor should not be allowed to investigate the employee complaint. 1d. at 555.
She asserted that her comment addressed a matter of public concern because it involved a
sexual harassment issue. Id. at 5 5 7. in rejecting her argument, we stated:
In determining whether an einpioyee[’s speech is of public concern],
we examine several factors, including the content, form, and centext of the
speech in light of the entire record. Cannz‘ckL 461. U.S. at 147-48]. The
speaker ’s intent is also a factorw‘iw] as 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
bringing a wrong to light?” Edwards [12. Dep ’t' 0fTransp., 66 Wash. App.
552, 560, 832 P.2d 1332 (1992)].
. . . Tyner’s request that Pilarski not investigate [the sexual
harassment] allegations . . . based on Tyner’s opinion that Pilarski did not
do a thorough job . . . expressed only her personal dissatisfaction.
if Tyner’s comment were construed as a matter of public concern,
any speech even tangentially related to a public issue could satisfy the
public concern requirement for First Amendment protection. This wouid
allow even routine criticism of supervisors, internai office decisions, and
policies to be categorized as matters of public interest, a scenario we
cautioned against in Wilson [12. State, 84 Wash. App. 332, 342, 929 P.2d 448(1996)].
Id. at 557-59 (emphasis added) (some aiterations in originai).
In. Dillon, we find further support for the proposition that speech that only
tangentially implicates a public issue is not a matter of public concern:
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No. 318374le
Johnson 12. Ryan
[W]hen the allegations referring to arguably protected activity are
only incidental to a cause of action based essentially on nonprotected
activity, collateral allusions to protected activity should not subject
the cause of action to the anti-SLAPP statute.
Dillon, 179 Wn. App. at 72 (quoting Martinez v. Metabolryia Int’l, Inc, 1 13 Cal. App. 4th
18}, i88, 6 Cal. Rptr. 3d 494 (2003)).
in this case, we must construe all evidence and inferences in the light most
favorable to Johnson, the party resisting the summary dismissal of her defamation ciairn.
In doing so, we must determine whether the content, form, and context of the speech are
primarily of a private or primarily of a public concern. As noted in Tyner, we may also
examine the speaker’s intent or motive. By examining the primary content, form, and.
context, we better achieve the legislative purpose of balancing the rights of both iitigants
so that the expedited summary process weeds out only those defamation claims brought
for the abusive primary purpose of chiiiing valid free public speech. Conversely, were we
to align ourselves with the dissent’s California approach and examine whether the speech
had merely a “connection” to a matter of public concern, we would be ignoring this stated
legislative purpose.
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 ot‘the
speech is not some lofty public good, but merely establishing that his employer was
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No. 31837-l-HI
Johnson v. Ryan
wrong in firing him. The form of the speech is a blog, usefui for conveying either private
or public concerns. The context of the speech arises out of a private empioyment 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 speechmwwe.g., the executive director of a theatre that depends on public
participation and donations has a tyrannical management styleeeis not enough. to
transform a private dispute into a matter of public concern. In short, the content and
context of Ryan’s speech is primarily a matter of his own private concern and, therefore,
is not protected public speech under RCW 4.24.525.
ATTORNEY FEES AND COSTS
Johnson seeks an award of reasonabie attorney fees, litigation costs, and. special
damages of$l0,000 under RCW 4.24.525(6)(a). RCW 4.24.525(6)(b) permits such an
award if the court finds that a special motion to strike is frivolous or brought solely to
cause unnecessary delay. Although we disagree with Ryan’s claim of public concern, we
do not find that his motion was frivolous nor do we find it was brought to cause
unnecessary delay. We therefore reject J ohnson’s request.
20
No.31837—1—HI
Johnson v. Ryan
director for the Theatre. Ryan moved with his famin from another state to Spokane. He
understood the job had a three—year term.
Two months after the hiring, Johnson terminated Ryan’s employment at the
direction of the Theatre”s board. Prior to Ryan’s termination, the Theatre received an
anonymous e—mail disclosing the nonmonogamons nature of Ryan’s marriage, as well as
Ryan’s use of graphically nude photographs and texts While engaging in oniine sex
solicitations. The Theatre also discovered that Ryan noted that he was employed by the
Theatre and used his Theatre employee photograph in advertising for sex. According to
Johnson, the Theatre learned that Ryan initiated some of his sexual solicitations white
backstage on Theatre premises.
Johnson wrote a lengthy termination letter to Ryan. in summary, the letter noted
that he was being terminated not because of his swinger lifestyle but because his coupling
of his lifestyle with his employment at the Theatre had the potential for offending parts of
the local community and thus reducing the Theatre’s donations, Mr. Ryan admits that he
posted a discreet listing on Craigslist for sex, although he denies that it included any
information that identified his name or his empioyer. Rather, he contends that aii
identifying information was forwarded to the Theatre by an anonymous e~mailer, who in
turn had received it from someone Mr. Ryan had met through Craigsiist.
No. 3i837-1-IH
Johnson v. Ryan
In conclusion, we reverse the trial court’s order striking Ms. Johnson’s claims. We
reinstate her claims and remand this case for further proceedings consistent with this
opinion.
[Awrfinofi "' )
Lawrence-Berrey, J.
I CONCUR:
%
Siddoway, CJ.
21
No. 318374-111
SIDDOWAY= C.J. (concurring) —-— “[T]he individual’s right to the protection of his
good name ‘refleets no more than our basic concept of the essentiai dignity and worth of
every human being—a concept at the root of any decent system of ordered liberty.’ ”
Gert: 12. Robert Welch, Inc, 418 US. 323, 341, 94 S. Ct. 2997. 41 L. Ed. 2d 789 (1974)
(quoting Rosenblaz‘t v. Boer, 383 U.S. 75, 92, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1.966)
(Stewart, J ., concurring)).
Had James Ryan responded to Yvonne Johnson’s perceived wrongs against him
by throwing a rock through her window or breaking her nose, she would have had a right
to complete redress. instead—if the allegations of her complaint are provedemhe found a
more brutally effective form of retribution: destroying her professional reputation.
Every defamation ease presents an opportunity for us to reaffirm the importance of
free speech to a democratic society. Here, a plaintiff claiming aetuai harm caused by
culpable falsehood has had her complaint dismissed at the inception of her case. It is
incumbent on us to consider the important interests she has at stake as well.
No. 318374411 ~ concurring
Johnson v. Ryan
I agree with most of the majority opinion. I write separately to emphasize two
matters that are important in construing the ZOEO amendments to the anti~SLAPP statute]
The first is that there is nothing in the statute or the legislature’s findings that
evinces a legislative intent to make substantive changes to the law of defamation. When
it comes to defamation claims, the iegislature’s preamble to the 2010 legislation tells us
that its intent was to enable defendants to extricate themselves at the earliest possible
stage from a claim that is doomed from its inception, not to alter a plaintiff’s right to
redress for defamatory falsehoods—ma right that arguably enjoys protection under articie 1,
section 5 of the Washington Constitution.
Second, and more particulariy, construing “public concern” as broadly as
California’s “public interest” standard will change our defamation law in a way that is
inconsistent with the legislature’s intent to “[s]trii<;e a balance between the rights of
persons to tile lawsuits and to trial byjury and the right of persons to participate in
matters oi’public concern.” LAWS OF 20i0, ch. 118, § l(2)(a). it is critical, as the
majority opinion holds, that we construe “public concern.” as an intentionai adoption of
the iongstanding standard. for identifying speech entitled to heightened First Amendment
protection. We should not look to cases construing California’s far broader “public
interest” standard, which is untethered to any value of the speech that it protects.
1 Strategic Lawsuit Against Public Participation. RCW 4.24.510.
No. 31837-1411 A concurring
Johnson 1/. Ryan
The constitutional ization of defamation law
under the First Amendment already provides
Significant protections for Speech
Over the last 50 years, protections for speech recognized under the First
Amendment have restricted the states’ freedom to define and impose damages on
defamatory speech, transforming defamation law in ways that have consistently favored
defendants. Before New York Times Co. v. Sullivan, 376 U.S. 254, 267, 84 S. Ct. 7l0, 11
L. Ed. 2d 686 (1964), once a plaintiff alleged statements constituting “libel per se” that
were of and concerning her, a defendant’s only defense was to prove that his statements
were true. General damages would be presumed. in New York Times, the United States
Supreme Court concluded that applying the common law in favor of a public official
suing for defamation was akin to punishing seditious libel, in violation of the speaker’s
First Amendment rights. it held that a public official could not recover damages for a
defamatory falsehood relating to his official conduct “unless he proves that the statement
was made with “actual malice’~wthat is, with. knowledge that it was false or with reckless
disregard of whether it was false or not.” 376 US. at 279—80. It also required that actual
malice be demonstrated with convincing clarity. Id. at 28 5-86.
In Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964),
which the Supreme Court decided later in 1964, the Court held that even though truth was
not a defense to criminal libel at common law (since a purpose of criminal libel was to
avert the possibility that even a truthfully maligned victim wouid breach the peace), true
No. 3i837~i-1Hm concurring
Johnson v. Ryan
statements could not constitutionaliy be the subject of either civil or criminai sanctions
where “discussion of public affairs” was concerned.
In Curtis Publishing Company v. Butts, 388 U.S. 130, 155, 87 S. Ct. 1975, 18 L.
Ed. 2d 1094 (1967), the Supreme Court extended the actual malice standard to plaintiffs
who were “public figures” under ordinary tort rules. It characterized public figures as
“command[ing] sufficient continuing public interest and . . . sufficient access to the
means of counterargument to be able ‘to expose through discussion the falsehood and
fallacies’ of defamatory statements,” either based on the public figure’s “position alone”
or. by “purposeful activity amounting to a thrusting of [one’s] personality into the ‘vortcx’
of an important public controversy.” Id. at 155 (quoting Whitney v. Cal, 274 US. 357,
377, 47 S. Ct. 641, 71 L. Ed. 1095 (i927) (Brandeis, J., dissenting)).
ln Gertz, the Court retooled an earlier approach2 and held that the proper
accommodation between the law of defamation and the freedoms protected by the First
Amendment required differentiating between public officials and public figures, on the
one hand, and private individuals, on the other. It held that the New York Times standard
“defines the level of constitutional protection appropriate to the context of defamation of
2 Gerrz abrogated Ro._senb[oom v. Metromedz’a, Inc, 403 Us. 29, 44—45, 91 S. Ct.
181 l, 29 L. Ed. 2d 296 (1971), in which a plurality had concluded that “the time has
come forthrightly to announce that the determinant whether the First Amendment applies
to state libel actions is whether the utterance involved concerns an issue ofpn-blic or
general concern, albeit leaving the delineation of the reach of that term to future cases.”
(Emphasis added).
No. 3 1 837—1-HI w concurring
Johnson 12. Ryan
a pubiic person.” Gertz, 418 US. at 342. But speaking of a private individual, the Court
said:
He has relinquished no part of his interest in the protection of his own good
name, and consequently he has a more compelling caii on the courts for
redress of injury inflicted by defamatory falsehood. Thus, private
individuals are not oniy more vuinerabie to injury than public officiais and
public figures; they are also more deserving of recovery.
Id. at 345. Gertz held that “so long as they do not impose iiabiiity without fault, the
States may define for themselves the appropriate standard of liability for a pubiisher or
broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347. It also
heid that the plaintiff in Gertzwwa public figure—could not recover presumed damages
nor recover punitive damages unless the publication was made with actuai maiice, Id. at
349-50.
in Cox Broadcasting Corp. v. Conn, 420 US. 469, 491, 95 S. Ct. 1029, 43 L. Ed.
2d 328 (1975), the Supreme Court held that a state could not impose sanctions for the
accurate pubiication of the name of a rape victim obtained from judicial records
maintained in connection with a public prosecution and which themselves were open to
public inspection.
In 1981, our own Supreme Court went beyond the United States Supreme Court,
holding that for “policy reasons, rooted in the First Amendment,” an “eariy testing of
piaintiff‘ s evidence by a convincing clarity burden” was appropriate in all defamation
cases, as to all elements—even in cases involving private plaintiffs, if the offending
No. 31837~1~ifl ~ concurring
Johnson v. Ryan
publication addressed a matter of pubiic concern. Mark V. Senate Times, 96 Wash. 2d 473,
487, 635 P.2d 1081 (£981). The viability ofthat holding is questionable in light oflater
cases. See Herron v. Tribune Publ’g Co, 108 Wash. 2d 162, 170—71, 736 P.2d 249 (1987)
(appearing to tie summary judgment standard to the standard of proof at trial); Hauerer v.
Cowles Publ’g Co, 61 Wash. App. 572, 582, 811 P.2d 231 (i991) (concluding that
“[n]either the common law nor the First Amendment . . . requires proof ofany element of
a defamation action, other than actual malice, by evidence of convincing clarity”);
Richmond 12. Thompson, 130 Wash. 2d 368, 385~86, 922 P.2d 1343 (1996) (rejecting the
position that the First Amendment demands the application of a higher evidentiary ‘
standard at the summary judgment stage); Mom“ 12. Grant, 153 Wash. 2d 812, 822 & nn. 7-8,
108 P.3d 768 (2005) (stating that “[c]ase law is unclear as to Whether a private plaintiff
facing a defense motion for summary judgment must make a prima facie showing of ail
of the elements of defamation with convincing ciarity or by a preponderance of the
evidence,” and deferring clarification “for another day”); Molar, 153 Wn.2d at 833
(Chambers, 1., dissenting) (citing Mark’s conclusion that a private plaintiff resisting a
defense motion for summary judgment must establish a prima facie case by convincing
clarity as “the concession defamation law makes to the First Amendment”).
Returning to United States Supreme Court precedent, in a 1984 defamation action
brought by the Bose Corporation, the Court recognized. a heightened standard for
appellate review in favor of defamation defendants, holding that “in cases raising First
No. 31837~i—111~ concurring
Johnson 12. Ryan
Amendment issues . . . an appeiiate court has an obligation to ‘make an independent
examination of the whole record’ in order to make sure that “the judgment does not
constitute a forbidden intrusion on the fieid of free expression.” Bose Corp. v.
Consumers Union ofUnited States, Inc, 466 US. 485, 499, 104 S. Ct. 1949, 80 L. Ed. 2d
502 (1984) (quoting New York Times, 376 US. at 284-86).
In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc, 472 US. 749, 751, 105 S.
Ct. 2939, 86 L. Ed. 2d 593 (1985), a majority ofjustices reasoned that the plaintiff in
Gerrz had been iimited in the damages he could recover because the speech at issue had
invoived a matter of public concern. It held that where a defendant’s speech concerned a
- private individual and a matter of private concern, states could allow plaintiffs to recover
presumed and punitive damages even absent a showing of actual malice. 1d. at 761.
in Anderson 12. Liberty Lobby, Inc, 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986), the Supreme Court heid that when ruling on a summary judgment in any
civii case in which the “ciear and convincing” standard applies, the trial court must bear
in mind “the actual quantum and quality of proof necessary to support iiability.” Because
Liberty Lobby was an action for defamation by a public figure, the actual maiice standard
applied. Accordingly, the Court held that to survive summary judgment, the evidence
presented by the plaintiff must be “of []sufficient caliber or quantity to aiiow a rational
finder of fact to find actual malice by clear and convincing evidence.” Id. Liberty
No. 31837—1411 ~ concurring
Johnson v. Ryan
Lobby’s construction ofFederai Rules of Civil Procedure 56 was applied to CR 56 by our
state Supreme Court in Herron, 108 Wn.2d at 170.
in Philadelphia Newspapers, Inc. v. Hepps, 475 US. 767, 777, 106 S. Ct. 1558, 89
L. Ed. 2d 783 (1986), the Court hetd that the common law presumption that defamatory
speech is false “cannot stand” even for a private party plaintiff, if he or she “seeks
damages against a media defendant for speech of public concern.” “in other words, the
Court fashioned 6a constitutional requirement that the plaintiff bear the burden of
showing falsity, as well. as fault, before recovering damages.’ ” Milkovich v. Lorain
Journal Co, 497 US. 1, 16, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990) (quoting Hepps, 475
US. at 776).
in Milkovich, the Court held that a statement on matters of public concern “must
be provable as false before there can be any liability under state defamation law,”
meaning that “a statement of opinion relating to matters of public concern which does not
contain a provably false factual connotation will receive full constitutionai protection.”
497 U.S. at 19—20 (emphasis added).
All of these important limitations on defamation claims flow from our “profound
national commitment,” reflected in the First Amendment, “to the principle that debate on
public issues should be uninhibited, robust, and wide-open.” New York Times, 376 US.
at 270 (emphasis added). But in construing RCW 4.24525 to carry out the legislature’s
stated obiective of striking a balance that recognizes “the rights of persons to file lawsuits
No. 31837—1—111— concurring
Johnson 12. Ryan
and to trial by jury,”3 we must remember that the constitutionalization of defamation law
under the First Amendment has already altered the common law balance, making it more
difficult for defained plaintiffs to obtain redress: it has in many cases shifted the burden
of proving falsity to the plaintiff; it has eliminated liability for a defendant’s statements
that do not have a provably false connotation; it has eliminated liability for true reports of
matters reflected in judicial records of public prosecutions; it has required public officials
and public figures to prove actual malice by clear and convincing evidence;4 for private
figure plaintiffs, it has imposed the same burden of proof if they seek to recover
presumed or punitive damages flowing from speech on a matter of public concern; and it
has imposed heightened appellate review that focuses on the rights of defamation
defendants.
T he legislature ’s statement of purpose evinces the intent to
accelerate the dismissal of doomed claims, not to impose
additional burdens on a plaintiff is right to sue for defamation
The legislature’s 2010 amendment to the anti-SLAPP statute cannot reasonably be
read as intended to create an additional substantive hurdle for defamation plaintiffs. No
concern is expressed in the preamble about existing elements or standards of proof. The
3 LAWS or 2010, ch. 118, § I(2)(a).
4 The Supreme Court observed in Gertz that “[p]lainly many deserving plaintiffs,
including some intentionally subjected to injury, will be unable to surmount the barrier of
the New York Times test.” 418 U.S. at 342.
No. 31837—1411
Johnson v. Ryan
Being without a job, Ryan had time to obsess over his firing from the Theatre. On
October 18, 20l0, Ryan began a public campaign to discredit Johnson for terminating his
employment. According to Johnson, the campaign began when Ryan sent an e—mail to
her and posted the message on Facebook, although the e—maiI is not part of the record.
On October 24, 2010, Ryan began posting negative statements about Yvonne Johnson on
the Internet via a blog entitled “thetyrannyofyvonne.” Clerk’s Papers (CP) at 99.
Ryan obtained the domain names of “spokanecivietheater.org” and
"spokanecivictheatre.org.” CP at 99. The Theatre’s domain address was
"spokanecivictheatre.corn.” The similarity in domain names caused confusion for those
wishing to locate the Theatre’s website. Anyone who mistakenly searched for the
Theatre’s website by utilizing one of his created addresses was immediately routed by
Ryan’s design to his sites. On April 29, 2011, Ryan began posting negative statements
about Johnson on his two sites. In general, these biogs provide a iengthy chr0nology of
Ryan’s ongoing post~employment dispute with Johnson through various tribunals. This
tedious chronology is set forth in some detail by the dissent. Within this tedious
chronoiogy is an isolated and vague reference that the Theatre board must be publicly
held to account for failing to exercise its duties. This vague reference liker was to a
wrongful discharge lawsuit that Ryan tiled soon afterward against the Theatre.
No. 31837—1—111 ~—~ concurring
Johnson v. Ryan
purpose for the motion to strike procedure is explained as accelerating the dismissal of
claims that are preordained to fail and sanctioning the plaintiffs who bring them.
The act’s preamble contains multiple textual indications that the legislature was
not concerned about plaintiffs who had viable defamation claims under existing law. lts
findings state that its concern is with lawsuits that are “brought primarily to chill the
valid exercise of. . . constitutional rights.” LAWS OF 2010, Ch. 118, § l(1)(a) (emphasis
added). They state that problematic lawsuits “are typicaily dismissed as groundless or
unconstituti.onal”mthe problem being that such cases are not dismissed early enough.
Id. at § l(l)(b). The findings state that the citizens about whom the legislature is
concerned are those who would “fear . . . reprisal through abuse of the judicial process.”
Id. at § i(l)(d) (emphasis added). They state that the act’s purpose is to “[s]trii98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978)).
The concept that some speech is entitled to heightened First Amendment
protection has been recognized for at least 75 years. It was discussed in Thorn/till v.
5 Constitutional challenges to the discrepancy between the standard on which the
trial court is required to strike a claim and the standard that would apply at trial were
raised and rejected in a decision by Division One of our court, and are presently before
our Supreme Court for review. Davis v. Cox, 180 Wash. App. 514, 546—48, 325 P.3d 255(2014),_review granted, No. 902330 (Wash. Oct. 9, 2014). Constitutional challenges
were not raised in this appeal.
12
No. 31837—1~IH — concurring
Johnson v. Ryan
Alabama, 310 US. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940), in which the Court reviewed
the conviction of a striking onion member arrested white picketing a mill, pursuant to an
Aiabama statute that outlawed tottering or picketng a business. in reversing the union
member’s conviction, the Court said,
The freedom of speech and of the press guaranteed by the
Constitution embraces at the least the liberty to discuss publicly and
truthfully all matters ofpublic concern without previous restraint or fear of
subsequent punishment. The exigencies of the coionial period and the
efforts to secure freedom from oppressive administration developed a
broadened conception of these iiberties as adequate to supply the public
need for information and education with respect to the significant issues of
the times. . . . Freedom ofdiscassion, if it would fulfill its historic function
in this nation, mast embrace all issues about which information is needed
or appropriate to enable the members ofsociety to cope with the exigencies
of their period.
Id. at 101-02 (footnotes omitted) (emphasis added).
Matters of public interest, public concern, and public affairs continued to be
recognized as worthy ofspeciai protection in the United States Supreme Court’s First
Amendment jurisprudence in the 1960s, even if the basis for imposing the actual matice
standard in a defamation case was a plaintiff” 3 status as a public officiai or a pubiic
figure. E. g, Garrison, 379 US. at 74 (providing heightened protection. for “discussion of
public affairs”); Pickering v. Bd, ofEduc. ofTwp. High Sch. Dist. 205, 391 US. 563,
573, 88 S. Ct. 173 i, 20 L. Ed. 2d 811 (1968) (discussing the great “public interest in
having free and unhindered debate on matters of public importancemthe core value of
the Free Speech Clause of the First Amendment”).
1.3
No. 31837~l~111- concurring
Johnson v. Ryan
P or several years in the eariy 19705, a plurality of the United States Supreme
Court even held that the fact that a publication dealt with an issue of “public concern”
should be the basis for applying the First Amendment’s actual malice standard. and the
requirement of proof by convincing clarity. Rosenbloom v. Metromedz‘a, Inc., 403 US.
29, 44—45, 91 S. Ct. 181 i, 29 L. Ed. 2d 296 (197i), abrogated by Gertz, 418 US. at
343-44. While the Court’s 1974 decision in Gertz returned the defamation plaintiff’s
status as a public official, public figure, or private figure to primary importance, the fact
that a publication did or did not deai with an issue of public concern continued to be
relevant in many cases to its protected status, including public employment cases that
have further developed factors to be considered in determining Whether a communication
“faii[s] under the rubric of matters of ‘pubiic concern.’ ” Conniek v. Myers, 461 US.
138, £48, £03 S. Ct. 1684, 75 L. Ed. 2d 708 (1.983);6 aeeordDun & Bradstreet, 472 U.S.
at 756 (distinguishing Gerrz as involving expression on a matter of “undoubted public
concern” .
In explaining why “speech on “matters of public concern” . . . is “at the heart of the
First Amendment’s protection,” ” the Supreme Court in Dun & Bradstreet shed tight on
What it meant by speech on matters of public concern. 472 US at 7 58-59 (internal
6 The content of the speech is generaiiy the most important. Karl v. City of
Moanrlake Terrace, 678 F.3d i062, 1069 (9th Cir. 20i2). The relevance ofmotive is in
understanding the context of a remark and is considered in relation to the content of the
speech itself. .Kokkim's v. [vkovr’eh, 185 F.3d 840, 848 (7th Cir. 1999).
14
No. 31837—1411 — concurring
Johnson v. Ryan
quotation marks omitted) (quoting Bellorri, 435 U.S. at 776. it spoke of the First
Amendment having been ‘“ fashioned to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the people.” ” Dim &
Bradstreet, 472 US. at 759 (internal quotation marks omitted) (quoting Roth v. United
States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1L. Ed. 2d 1498) (1957)). It characterized
such speech as “‘ [s]peech concerning public affairs” that is “‘ more than self—
expression; it is the essence of self—government.’ ” Id. (quoting Garrison, 379 U.S. at 74-
75). In deciding whether the speech at issue involved a matter of public concern, the
factors that it chose to apply were those identified in its 1983 decision in Connick, which
it described as arising “[i]n a related context.” Dun & Bradstreet, 472 US. at 761.
In Connick, the Court observed that the Constitution’s “special concern with
threats to the right of citizens to participate in political affairs is no mystery.” 461 US. at
145. In addition. to quoting Garrison’s characterization of speech concerning public
affairs as “ ‘ more that self-expression’ ” and “‘the essence of self—government,” ” id.
(quoting Garrison, 379 US. at 74~7 5) and Roth’s observation that the First Amendment
“ ‘Was fashioned to assure unfettered interchange of ideas for the bringing about of
political and social changes,“ ” id. (quoting Roth, 354 U.S. at 484), it stated that the Court
had “frequently reaffirmed that speech on pubiic issues occupies the ‘highest rung of the
hierarchy of First Amendment values,” and is entitled to speciai protection.” Id. (quoting
Not 7 Ass ’nfor Advancement of Colored People v. Claiborne Hardware Co, 458 US.
15
No. 31837—l-lll — concurring
Johnson 1:. Ryan
886, 9l3, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982); Carey v. Brown, 447 US. 455, 467,
1.00 S. Ct. 2286, 65 L. Ed. 2d 263 (l980)).
To be sure, neither the United States Supreme Court nor our own Supreme Court
has siavishly used the term “public concern” in discussing speech entitled to heightened
protection. Both. have spoken of “public interest” and “public affairs” somewhat
interchangeably. But the clearly predominant label that federal courts and our own have
applied in identifying that speech whose character warrants special protection under the
First Amendment is speech on. issues or matters of “public concern.”
As the majority explains, our legislature’s notable substitution of the “public
concern” for the California statute’s reference to “public interest” reflects an implicit
rejection of the California term and the case law construing it. Majority at 12-13.
Moreover, “‘ if the legislature uses a term well known to the common law, it is presumed
that the legislature intended to mean what it was understood to mean at common law.” ”
Ralph v. Dep ’t ofNatan Res, No. 88115—4, 2014 WL 7445555 at *2 (Wash. Dec. 31,
2014) (quoting NY. Life Ins. Co. v. Jones, 86 Wash. 2d 44, 47, 541 P.2d 989 (i975)). The
legislature’s rejection of “public interest” in favor of “public concern” is a clear
indication that the well—known First Amendment concept was intended. There is no need
to resort to dictionary definitions.
The rubric “public concern” imparts a meaning very different from the meaning
that California courts have ascribed to “public interest” as used in that state’s anti—SLAP?
i6
No. 31837—l—lll w concurring
Johnson 1). Ryan
statute. 7 “Public interest” has been construed as untethered to any value of speech under
the First Amendment. California courts have construed it to mean “any issue in which
the public is interested.” Nygam’, Inc. v. Unsi—Kerrl‘ula, 159 Cal. App. 4th 1027, 1042, 72
Cal. Rptr. 3d 210 (2008). In describing the exceptionally broad construction of “public
interest” by California courts, the Ninth Circuit Court of Appeals has observed that the
California Supreme Court
has “explicitly rejected the assertion that the only activities qualifying for
statutory protection are those which meet the lofty standard of pertaining to
the heart of self~government.” Navellz'er [M Steffen, 29 Cal. App. 4th 82, 52
P.3d 703, 710, 124 Cal. Rptr. 2d 530 (2002)] (internal quotation marks
omitted). Thus, the activity of the defendant need not involve questions of
civic concern; social or even low-brow topics may suffice.
Hilton v. Hallmark Cards, 599 F.3d 894, 905 (9th Cir. 20t0). Washington commentators
have agreed that California’s is “one of the broadest anti-SLAPl3 statutes in the United
States.” Johnson & Duran, supra, at 523.
The decision in Tam/cm v. CBS Broadcasting Inc, 193- Cal. App. 4th 133, 122
Cal. Rptr. 3d 264 (2011) illustrates just how far removed from a First Amendment value—
driven concept of “public concern” California’s non-First Amendment value-driven
concept of “public interest" can be. In that case, a casting synopsis was prepared. for two
7 On this score, I disagree not only with the dissent but also with the view
expressed in Alaska Structures, Inc. v. Hedlund, l80 Wn. App. 591, 599, 323 P.3d 1082(2014) that there Was “no discernible difference” in the terms “public interest” and
“public concern.”
17
No. 31837—1-111— concurring
Johnson v. Ryan
characters, “Scott Tanikin” and “Melinda Tarnkin” who would play parts in an upcoming
episode of the teievision program CS]: Crime Scene Investigation. Scott and Melinda
Tamkin were the names of a reai—iife married couple, both real estate agents. A writer for
the CS] series met the Tamkins when she made an offer on a home that she iater
exercised her right to cancel.
The writer used the Tanikins’ names as placeholders in drafting a script for an
episode of CS] about a troubled fictional married couple who were both real estate
professionals. The writer intended to substitute other names in the final script. The
casting synopses were inadvertently released using the names “Scott Tainkin” and
“Melinda Tamkin” and described the characters in defamatory ways bearing no relation
to the real Mr. and Mrs. Tainkin. When Mr. Tamkin discovered the synopses on the
internet, he and his wife brought suit.
An anti—SLAP? motion to strike the Tanikins’ complaint was granted and affirmed
on appeal. The facts that the Tamkins were private figures, that they did nothing to cause
their names to be included in a CS] script, and even that the script and casting'synopses
were admitted fiction, proved irrelevant to the appellate court’s “public interest” analysis.
instead, it was enough that there was public interest “in the creative process underlying
the production of the fiim” and that the defendants “showed that there was a public
interest in the writing, casting, and broadcasting of CS] episode 913.” ]d. at 144. The
pubiic interest in CS] episode 913 was shown “by the posting of the casting synopses on
i8
No. 3 i 837-l—lll A“ concurring
Johnson v. Ryan
various Web sites and the ratings for the episode.” Id. at E43. in California, then, not
only debatable fantasy but admitted fantasy (and about private plaintiffs) is a matter of
“public interest,” as long as it is interesting.
Such a broad meaning of “public concern” would introduce dissonance into
RCW 4.24.525(2). Under the principle of noscitur a soccis, “ ‘ the meaning of words may
be indicated or controlled by those with which they are associated.’ ” State 12. Jackson,
i37 Wn.2d 712, 729, 976 P.2d 1229 (1999) (quoting Ball v. Stokely Foods, Inc, 37
_Wn.2d 79, 87‘488, 221 P.2d 832 (1950); accord State v. Budik, 173 Wash. 2d 727, 735, 272
P.3d 816 (20i2) (construing six criminal means deiineated by statute as having
common qualities, rather than as including an outlier). RCW 4.24.525(2)’s first three
examples of actions “involving public participation and petition” are all statements in, in
connection with, or encouraging or enlisting participation in a governmentai proceeding.
RCW 4.24.525(2)(a)—(c). Its fourth and fifth examples are statements made in a public
forum or otherwise in connection with an issue of public concern. RCW 4.24.525(2)(d)-
(e). if “public concern” is understood to mean the type of speech given heightened
protection in First Amendment juriSprudence, then. all five examples of actions
“involving public participation and petition” are communications relevant to self-
government or political and social change. On the other hand, if “public concern” is
construed as having the same meaning given “public interest” by California courts, then
RCW 4.24.5 25 identifies three related examples of political participation and two
1.9
No. 3l837—l—Ill
Johnson 12. Ryan
Johnson aiieges that Ryan sought to prevent her from gaining empioyment in the
theater world. She cites a November 14, 2011 blog Ryan wrote:
As i was writing this, it occurred to me that Civic is iocked in a self—
imposed catch-22. T he longer the board faiis to seek a resolution [to my
employment dispute], the longer Civic is likely to be stuck with Yvonne
AK. Johnson. People have been talking for a year now about her desire to
find a bigger, better job and move on from here—a scenario that has been
fantasized about with no small amount of glee. If it is true that Ms. Johnson
has been job hunting, one has to imagine that prospective ernpioyers have
probably taken the time to Googie Civic and her name. They are not likely
to skip past the second search result, which is this site. (They might even
just enter http://www.spokanecivictheatre.org, assuming that that would be
the correct domain.) A few minutes spent reading this . . . is likely to
induce a sense that Ms. Johnson would bring more drama and divisiveness
than any respectable institution would care to have. So any fantasies you
may have that Civic will soon be free of Ms. Johnson of her own accord are
probably a hit unrealistic.
C? at 108.
[n a similar vein, Ryan wrote in red letters at the beginning of a blog on February
8, 20i3:
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 tend supporting testimony to what you will read [here I can be]
reached at civicdoodyspol72 S. Ct. 725, 96 L. Ed. 919 (1952), Justice Jackson, having surveyed
state constitutions, identified more than 40 (including Washington”s) that, “While
extending broad protections to speech and press, reserve a responsibility for their abuse
and impiicitly or explicitly recognize validity of criminal libel laws.” Constitutionai
protections of speech of this sort have been referred to as “liberty and responsibility”
clauses. Ex Parie Tueei, 859 S.W.2d 1, 22—23 (Tex. l993) (Phillips, J., concurring); Am.
Bush v. City ofSonih Salt Lake, 2006 UT 40, 140 P.3d 1235, 1.241.. “Historical evidence
indicates that the phrase imposing responsibility for the ‘abuse’ of the right was inserted
to preserve civil liability for defamation.” 1 Jennifer Friesen, STATE CONSTITUTIONAL
20
No. 318374411 A concurring
Johnson v. Ryan
LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS, AND DEFENSBS § 5.02[3][e] at 5-10 (4th
ed. 2006); accord Wheeler v. Green, 286 Or. 99, 118, 593 P.2d 777 (1979) (holding that
defamatory statements are recognized as an abuse of the right of free expression for
which a person is to be held responsible under article 1, section 8 of the Oregon
Constitution); Tamer v. KTRK Television, Inc, 38 S.W.3d 103, 117 (Tex. 2000) (holding
that “the Texas Constitution expressiy guarantees the right to bring reputational torts”);
Telnz’koflv. Matusevitch, 347 Md. 561, 614, 702 A.2d 230 (1997) (Chasanow, .l.,
dissenting) (characterizing article 40 of the Maryland Declaration of Rights as containing
“a safeguard against defamation” not found in the United States Constitution); Am. Bush,
E40 P.3d at 1244 (characterizing it as “undoubtedly true” that the phrase “responsible for
the abuse” in Utah’s iiberty and responsibility clause was intended to preserve liability
for defamation). But of Werner v. S. Cal. Associated Newspapers, 35 Cal. 2d 121, 124-
25, 216 P.2d 825 (1950) (construing the abuse language as merely making clear that the
right of free speech does not guarantee immunity from liability).
Of course, we avoid deciding constitutional questions where a case may be fairly
resolved on other grounds. Cmty. Telecable ofSearrle, Inc. v. City of Seattle, Dep ’t of
Exec. Admin, 164 Wash. 2d 35, 41, 186 P.3d 1032 (2008). A narrow, First Amendment—
based meaning of “public concern” is most likely to avoid a constitutional challenge
under article i, section 5 of the Washington Constitution. Nevertheless, because 1 agree
with the majority that there are ample nonconstitutional reasons why “public concern”
21
No. 31837—1411 W concurring
Johnson 12. Ryan
should be understood £0 have its well-settled meaning, it is premature to analyze the
meaning of the “responsible for the abuse” language in that section of our constitution.
W" Siddoway, CJ.
U
22
NO. 31837—1411
FEARING, J . (dissenting) m—
lN’I‘RODUCTlON
This appeal asks this court to interpret the expression “public concern” found in
the 2010 Washington. anti-SLAP}? (Strategic Lawsuit Against Public Participation)
statute, RCW 4.24.525. We need not announce a comprehensive definition for the
statutory phrase, but only determine whether. vitriolic blogging of James Ryan targeting
Spokane Civic Theatre Executive Artistic Director Yvonne Johnson fits within the term.
The majority holds that James Ryan’s “blogging was primarily for personal
concern, not public concern.” Majority at l. l do not know if the majority rules that
Ryan’s blogging is of no public concern or is of public concern, but motivated more by
personal concern. Regardless, l dissent, because the blogging contained elements of
public concern. More importantly, the anti—SLAPP statute does not authorize this court
or the trial court to weigh. the motivation of James Ryan. Personal gain or vengeance is
not relevant in determining whether speech is of public concern. Since Ryan’s comments
about Yvonne Johnson were of public concern and since Johnson fails to present a prima
facie case of liability, I dissent.
FACTS
I try not to repeat all facts outlined by the majority, but repeat some for emphasis.
The Spokane Civic Theatre is a not—fonprofit, performing arts theatre located in Spokane.
The Civic Theatre is a private foundation receiving support from private donors and
operating with an endowmentmthe Spokane Civic Theatre Endowment Fund. A
INo. 31837~i-lll — dissent
Johnson 1). Ryan
Wikipedia entry described the Civic Theatre as “one of the oldest community theatres in
the country . . . [and] a point of pride for the city [of Spokanel.” Clerk’s Papers (CP) at
55.
The Spokane Civic Theatre’s website deciares that “the tradition of public
education has continued throughout our history.” CP at 27. As such. the theatre seIVes
as an educationai resource for local high school and college drama departments. At least
one thousand volunteers assist the Civic Theatre. The Theatre’s website further reads:
“in addition to volunteering their time, the Spokane Community has given incredible
amounts in the form of donations that support us in our mission to provide and support
theatre excellence.” C? at 27.
In 2005, the Spokane Civic Theatre hired plaintiff Yvonne Johnson as its
executive artistic director. On January 27, 2005, the Spokesman—Review, Spolrane’s
major newspaper, published an article introducing Johnson to the community.
On August 29, 2010, the Spokesman-Review published. an article praising Yvonne
Johnson for helping the Spokane Civic Theatre thrive despite the brutal economy. The
article quoted one local director and performer: “‘i think she’s been a gift to the
community. She has helped the Spokane Civic Theatre regain its standards as a glorious
and retiable theater?” CP at 51.
Yvonne Johnson maintained her own website, wwwyvonneakjohnsoncom. The
website promoted her career. The website described, in part, her duties as executive
artistic director at the Spokane Civic Theatre. The duties included assisting the Theatre’s
No. 3i837—i—IH - dissent
Johnson v. Ryan
business manager and director of development on obtaining grants, cultivating donor
relations, administering personnei policies, ensuring compliance with state and federal
regulations, representing the Theatre to the community, and maintaining contact with
state and nationai arts organizations.
As the executive artistic director, Yvonne Johnson supervised and evaluated Civic
Theatre employees and administered grievance and termination procedures. On
August 19, 2010, Johnson hired defendant James Ryan as music director for the Theatre.
Ryan desired employment with a community theatre iike the Spokane Civic Theatre, as
opposed to a professional theatre where talent moves from place to place to further
careers. Ryan believed that working for the Spokane Civic Theatre would allow his
family a better connection to its home community.
Two months after the hiring, Yvonne Johnson terminated James Ryan’s
employment for cause at the direction of the Civic Theatre’s board. Yvonne Johnson
wrote a termination letter to Ryan. Because Ryan ciairns the letter confirms the “public”
nature of the Civic Theatre, 1 quote much of the letter here:
As we discussed Sunday, October l7, 2010, your employment with
the Theatre is terminated effective October 17, 2010. . . .
YOUR FIRE—TERMINATION CONDUCT ,
The Theatre decided to terminate your employment because you
exercised extremely poor judgment by placing into the public domain
sexually graphic text and pictures of you and Lynette [Ryan’s wife]
combined with information that permitted an association to the Theatre.
There are three gross offenses here.
First, there is the public nature of your indiscretions due to using
www.Craigslist.org to solicit sex. For most peoplewsexual conduct is a
No. 318374—111 — dissent
Johnson v. Ryan
personal matter, not something to be shared with the community at large or
imported into the workplace.
Second, you would have been fine had you exercised even a
modicum of judgment and maintained professional anonymity. Instead you
chose to publicly associate your sexual activities with the Theatre by
referencing your workplace in e-mails, sending sexually explicit e—«mails
from work while backstage, and using your photo that is on the Theatre’s
website to solicit sexual activity. . . .
Third, as the Music Director, you were in a leadership position and
miserably failed to uphold yourself to the high public standards charged to
representatives of the Theatre. (See our handbook). On Friday, October 15,
2010, you first disclosed your personal sexual activities to me. As i told
you then and as I believe in my heart now, the Theatre neither judges nor
cares about what employees do in their personal lives. . . .
However, the very moment that the Theatre became implicated is the
moment that serious business concerns arose. What was once wholly
personal quickly transformed into a matter regarding professional judgment
and leadership competence.
. . . However, our personal sensitivities are not the proper measure
for the appropriate boundaries of public decorum for representatives of the
Theatre. In gauging our public actions, we must think of the diverse
community we serve and the potential for its offense. We serve mature
audiences and youth audiences. We serve audiences both conservative and
liberal, both modest and flagrant. Given the range of diversity, the Theatre
must take a high road and hold itself and its representatives to the highest
of ethical standards, lest we offend even afiraction of our supporters none
ofwhom we can afford to alienate. The potential to oflend the local
community is the appropriate measure to guide our judgment. As a
director and leader of the Theatre, you, of all people, should have known
better, Jim.
You know how dependent we are upon the good will of the local
community in the greater Spokane metropolitan area. The Theatre exists
and thrives only because of local support. Local ticket sales, local
donations, and local volunteers are the lifeblood for our not-for—protit and
growing civic theatre. Furthermore, we are not the only game in town. The
competition for local charity is fierce and dollars and resources are scarcer
clue to the degraded state of the economy. Before associating the Theatre
with your graphically nude pictures and public domain solicitations for sex,
did you even once think beyond your personal gratification and consider
the potential negative impact on the Theatre’s patron, donor and/or
No. 3 i 837—1411 - dissent
Johnson v. Ryan
volunteer support? The Theatre could have and still can go down in
financial flames because of what you have done. All of our hard work
could be lost to public scandal and the Theatre could dwindle into
obscurity. . . .
POSTnTERMlNATlON CONDUCT
To worsen matters, you horribly mismanaged. your response to the
Theatre’s reaction. On Sunday, October 17, 2010, i contacted you to have
an in—person meeting with the Board so that we could professionally
discuss options. instead, you refused, became belligerent, and engaged in a
smear campaign to discredit me and the Theatre by falsely spreading
rumors that your termination was due to disclosing your status as a
“swinger.” As you may recall, you disclosed that information to me on
Friday, October l5, 2010. It was no big deal then and remains innocuous to
this day. The concerns arose later that afternoon while reviewing the
photographs and text and realizing the public nature of the association of
your sexual solicitations with the Theatre. Even then, the reinstatement of
you and Lynette to the Theatre’s employ and rehabilitation of the Theatre’s
image might have been possible. it appears that dissemination of the
information may have been limited. Maybe we could have hired a publicist
to help us address potential image damage.
In light of the above, the Board does not view its termination actions
as unfair, unduly harsh or artistically stifling in direct contravention of the
Theatre’s mission. The decision was made after careful and compassionate
deliberation. Of course, as vanguara’s of the dramatic arts, the Theatre is
cognizant of its role in challenging the community ’5 intellect and in
pushing the boundaries of creativity and artistic expression. However,
your public sexual endeavors are exclusively prurient in nature and deserve
no safe harbor.
We are truly sorry for the co-victims of your indiscretion and poor
judgment, namely Lynette and your son. Because Lynette was an
employee and her sexual activities were publicly associated with the
Theatre (albeit through your actions), termination was unavoidable. The
end result and the potential for the Theatre’s financial ruin is just as great.
You are fortunate you are on good terms with her for she likely has a legal.
claim. against you if the disclosures were made without her consent.
It is unfortunate we find ourselves in this position. We wish that you
would have maintained anonymity and kept your private life out of the
workplace. We also wish that you would have responded more amicably
and responsibly instead of making matters more public and enlarging the
potential harm. New, in addition to the potentially adverse financial
No. 31837-1411 - dissent
Johnson v. Ryan
repercussions, the Theatre is losing two contributing and talented
empioyees.
We wish you the best of luck and goodwill in your future endeavors
and hope that you now better understand the reasons for our actions .-
Hopefully, the better human being in you will forego any vengeful and
maiicious actions to injure the Theatre and the community through costly
litigation. Only the art and the community will sufler. We know that is not
your wish and that you are not selfish people.
CP at 83n85 (underlining in original) (emphasis added).
On October 24, 2010, James Ryan began posting negative statements about
Yvonne Johnson on the Internet Via a blog entitled “thetyrannyofyvonne.” CP at 99.
On Aprii'29, 201 1, Ryan began publishing adverse comments about Yvonne Johnson on
the Internet via the domain names of “spokanecivictheater.org” and
“spokanccivictheatre.org.” C? at 99. James Ryan operated the blog “civicdoodycorn.”
CP at 80. The blog could also be found at “thetyrannyofyvonne.blogspotcom.” CP at
80. “Spokanecivictheater.org” and “spokanecivictheatre.org” redirected to
“civicdoodycom.” C? at 81.
The Spokane Civic Theatre filed a claim, with an Internet domain organization,
against James Ryan, for use of his confusing website addresses. Ryan prevailed and kept
his domain names.
Because we must determine if J amcs Ryan’s speech on. his Internet blogs impiicate
a public concern, I quote much of the language from the postings. On July 5, 20E i, Ryan
posted the following blog that announced his prevailing in his claim for unemployment
compensation and accused Yvonne J ohnson of providing the Empioyment Security
No. 31837-l-Ill - dissent
Johnson v. Ryan
Department with false information:
TUESDAY, JULY 5, 2011
A Moral Victory
[PLEASE NOTE: This is obviously NOT the official site of Spokane
Civic Theatre. That can be found at WWW.spokanecivictheatre.com. This
site is here for the purpose of commentary and criticism. . . .
After a six-week investigation, the State of Washington has found
that Spokane Civic Theatre did not have sufficient cause to terminate my
employment on the basis of misconduct of any kind. While this does
nothing to improve my family’s general situation, it is clearly a moral
victory.
Yvonne AK Johnson was unable to document any of her
allegations, as they were blatantly false to begin with. Moreover, she never
conducted even a cursory investigation of the facts. Rather, she
immediately capitulated to the outrageous demands of a criminal
blackmailer on the basis of an anonymous email and proceeded to justify
her actions after the fact. My official separation letter should be expunged
from the record now that Ms. Johnson’s lies and distortions have been
revealed as such. Her handling of this situation has done irreparable harm
to Spokane Civic Theatre and to her own ability to lead. She should resign
her position. immediately.
If even one of Ms. J ohnson’s shocking and salacious allegations had
been true, the Washington State Department of Unemployment would
surely have found that my behavior showed “wanton disregard of the
employer” or “disregard of standards of behavior which the employer has a
right to expect.” This is all very hard to square with the tone of my official
separation letter, which says:
The Theatre could have and still can go down in
financial flames because of what you have done. All of our
hard work could be lost to public scandal and the Theatre
could dwindle into obscurity. That is what you have done.
That is the magnitude of the potential harm.
Whether you are an actor, a staff member, a musician, a patron, or a
board member, you now know that all of this could have been easily
avoided by an honest and interpersonally competent executive. All of the
drama, all of the negativity, all of the personal information you would
rather have never learned—none of it had to become your problem. Ms.
Johnson made it your problem.
No. 31837-1411
Johnson v. Ryan
Johnson aiso alleges that Ryan’s biog attacks sought to coerce a financial
settlement with the Theatre. In the same February biog, Ryan discussed a summary
judgment ruling against him in the wrongful discharge iawsuit he filed against the
Theatre. According to Ryan, prior to the dismissal of his lawsuit he offered to settle his
case for one year’s salary and moving expenses but now that his lawsuit was dismissed,
the Theatre would be required to pay “serious money” to “end this thing.” CP at 10. He
aiso blogged that public ridicule is the only remedy for actions that fall into this category
and this was their best chance to end this thing with a reasonable settlement and a
nondisclosure.
PROCEDURE
On April 5 , 2013, Yvonne Johnson filed suit against James Ryan for intentionai
interference with business expectancy and defamation. Johnson sought damages and
injunctive relief. In his amended answer, James Ryan sought dismissal of Johnson’s
complaint under RCW 424.525, the anti-SLAP}3 statute, together with an award of
statutory damages and reasonable attorney fees.
On May 31, 2013, Ryan brought a motion to strike, pursuant to RCW 4.24.525.
Ryan argued that his online postings simpiy provided a public forum for discussion and
dissemination of commentary, complaints, and general information related to the Theatre.
No.31837m1—111— dissent
Johnson v. Ryan
The sad irony is that Yvonne AK. Johnson couid have avoided
granting us this victory if her extraordinary inteliigence had not been
overwhelmed by her extreme maiiciousness. This ruiing is the resuit of her
decision to tight my Washington State unempioyment claim, which I filed
in May, when my Pennsyivania benefits ran out. Washington found that 1
was eiigibie for about $3378, paid out at the rate of $198 per week, for as
long as 1 remained unemployed, eiigibie for work, and actively seeking
work.
it Ms. Johnson had been acting in the best interest of Spokane Civic
Theatre, she would not have contested this claim. (If my calculations and
understandings of the system are correct, the absoiute most my claim will
cost Civic is $202.68. That’s 6% ofthe amount 1 am eligible for.) In the
course of fighting my claim, Ms. Johnson submitted false statements to the
Unemployment Security Department, in the form of my official separation
ietter. She had not previously provided this document to anyone other than
myseif. She has now opened the theatre to further charges of defamation,
as well as to charges of making demonstrably false statements to a
government agency, should Washington State wish to pursue that. She
actually went out of her way to request additional time from the
adjudicator, an indication that can only mean she put aii of her best efforts
into contesting my claim.
If Ms. Johnson had not been blinded by her determination to justify
her mistakes, she would not have contested this claim, as in doing so she
aiiowed for an adjudication of the circumstances surrounding my
termination. T hat adjudication has shown, beyond a shadow of a doubt,
that she has been in the wrong all along.
1 can only assume that Johnson wili drag this out further by
appealing this ruling. If she does, a hearing will take place, creating further
opportunity for her to make false statements on the record, opening Civic to
further liability. 1 hope she will, as 1 have no doubt as to what the outcome
of that process would be and 1 welcome the opportunity to vindicate myself
again. Iwili wait until her window of opportunity to appeai has passed
before 1 forward a version of this letter to local media outlets.
Finally, when board members fail to exercise the duties they accept
when they agree to sit on boards, they must be publicly heid to account.
This is Civic’s Board of Directors:
An update will be posted here in the coming days regarding the
status of our search for the attacker. Sadly, the one thing we’ve iearned is
that our best chance at catching and prosecuting him would have been for
the theatre to have pressed blackmaii charges immediately. As the theater
No. 31837~l~111~ dissent
Johnson 1). Ryan
was too busy firing and defaming us, that obviously did not happen. We
are stilt working on it though.
CP at 106-07.
In reaction to the July 5, 2011 post, Yvonne Johnson protested that she made no
false statements to the Employment Security Department and that James Ryan knew she
made no false statements. Spokane Civic Theatre Managing Director James Humes, not
Yvonne Johnson, signed the Theatre’s response to Ryan’s application for unemployment
benefits. Nevertheless, Johnson’s termination letter was attached to the Theatre’s
response and represented as the reason for Ryan’s tiring.
In a declaration in opposition to James Ryan’s anti-SLAPP motion, Yvonne
Johnson testified that character, integrity and reputation are of the utmost importance to
her position as executive artistic director of the Spokane Civic Theatre. The
characteristics dictate her length of employment with the Civic Theatre and whether she
can obtain similar employment elsewhere. Johnson expects to always work in the theater
field.
Yvonne Johnson believes James Ryan seeks to prevent her from gaining
employment in the theater world. In a November 14, 2011 blog Ryan wrote:
MONDAY, NOVEMBER 14, 2011
A Couple Things You Should Know
If you are an employee of Spokane Civic Theatre, there are a couple
of things you should knowwa couple of things I haven’t mentioned yet on
this site:
Firstiy, you should know that in addition to the outright lies
submitted. to the State of Washington by Civic in my official separation
No. 3i837—l—lll - dissent
Johnson v. Ryan
letter, there was also a standard questionnaire on which Civic checked a
box indicating that I had been discharged for “deliberate acts that are
illegal, provoke violence or violations of the laws.” Throughout all of
this, no one has ever indicated that I did anything illegal. Hell, the State of
Washington found that I didn’t even do anything negligent, let alone illegal.
So I think it is important for you to know that your employer is brazen
enough to cast such slanderous aspersions about their former emplbyees—
on official documents. They might even call you a criminal! This could
obviously impact your future job prospects in undesirable ways.
As i was writing this, it occurred to me that Civic is locked in a self-
imposed catch~22. The longer the board fails to seek a resolution to this
matter, the longer Civic is likely to be stuck with Yvonne AK. Johnson.
People have been. talking for a year now about her desire to find a bigger,
better j ob and move on from herewa scenario that has been fantasized
about with no small amount of glee. If it is true that Ms. Johnson has been
job hunting, one has to imagine that prospective employers have probably
taken the time to Google Civic and her name. They are not likely to skip
past the second search result, which is this site. (They might even just enter
http://www.spokanecivictheatre.org, assuming that would be the correct
domain.) A few minutes spent reading this and possibly clicking through to
the recent U DRP [Uniform Domain Name Dispute Resolution] decision
against Civic is likely to induce a sense that Ms. Johnson would bring more
drama and divisiveness than any respectable institution would care to have.
So any fantasies you may have that Civic will soon be free of Ms. Johnson
of her own accord are probably a bit unrealistic.
Finally, I’d like to brag just a little by pointing out that of the 85
most recent UDRP decisions, the reSpondent prevailed in only SIX
instances. That means that complainants win 93% of the time. That’s how
weak Civic’s $3 000 case against me was.
C? at 108 (bold and underlining in original) (emphasis added).
Yvonne Johnson characterizes James Ryan’s blog attacks as a means to coerce a
payment from the Spokane Civic Theatre. in the same February 8, 20l3 blog, Ryan
discussed a summary judgment ruling against him in a lawsuit he brought against the
Civic Theatre for wrongful discharge from employment. Ryan wrote:
10
No. 318374411 ~ dissent
Johnson 12. Ryan
Ironically, this is likely a huge disappointment for Yvonne AK.
Johnson and Civic’s Board of Directors. This was their best chance to
make this go away without spending money. it was handled by their
insurance company and had the potential to end this all with a settlement
and a non—disclosure agreement. If 1 had to guess, Ms. Johnson praying
against hope that they would write me a check and shut me up for good. So
this has a silver lining.
CP at 100.
The biog also stated:
I must also mention that it has come to my attention that Yvonne
AK. Johnson used information obtained during the discovery phase of my
suit to intimidate individuals cited in the documents I was legally obliged to
provide.
CP at 500.
Yvonne Johnson denied intimidating witnesses, so James Ryan filed a declaration
in this suit identifying the source of his information about intimidation. Before posting
the February 8, 2013 biog, Troy Nickerson, a Spokane theater director, informed Ryan
that Michelle Holland claimed she had been intimidated by Johnson. Ryan had identified
Hoiland as a witness in his iawsuit against the Civic Theatre for wrongful discharge.
Michelle Holland, a former employee of the Spokane Civic Theatre, signed a
deciaration in support of James Ryan’s anti-SLiltPi.J motion. Holland knew that parties
exchanged information in discovery in Ryan’s lawsuit against the Theatre and that Ryan
identified her as a witness in discovery, Yvonne Johnson approached Holland after this
exchange of witnesses. Aithough Holland could not recall J ohnson’s statements
verbatim, Johnson told Holland something aiong the lines of “ “I don’t know why you
11
No. 31837~I~III - dissent
Johnson v. Ryan '
don’t like me. I know several personal things about you that i do not go around telling
people.’ ” C}? at l30. Johnson then proceeded to list private personal things about
Holland. Holland concluded that Johnson meant to intimidate her.
In a March 20, 2013, blog on Civic Doody, James Ryan wrote:
Something Stinketh at Spokane Civic Theatre
WEDNESDAY, MARCH 20, 2013
So Sue Me!
I’m torn. The truth is that I would love nothing more than for Ms.
Johnson to file suit against me. I would absolutely love to see her flush a
bunch of her own cash down the toilet only to be right back where she
started once her frivolous claims are shut down by ajudge or a jury. I
would love to see her continue to deal with the consequences of her actions
on a daily basis, as I do. I would love for her to remain as preternaturally
fixated on my doings as I am on obtaining justice for what she did to us.
But itjust seems absurd. . .
Yvonne AK. Johnson and Civic have yet to initiate a successful
action against me. They fought my Washington State unemployment claim
and lost when the state found that no misconduct had occurred on my part.
She and her “board of directors” threatened to sue me for trademark
infringement and. defamation but apparently didn’t have anything to back
up those claims because they never tiled suit. They instead filed a UDRP
complaint against me with the World Intellectual Property Forum (at a cost
ofseveral thousand dollar's)mand they lost. Now Ms. Johnson is
reiterating her absurd claim of defamationwwhich is really just another
way of saying “i don’t like the mean things you’re saying about me!”w
along with a new claim of tortious interference, this time through her
personal attorney. If the goal has been to draw this out for as long as
possible and garner lots of negative attention for the theatre, Ms. Johnson
and her “board” have succeeded spectacularly.
All doubt about the wrongness of Civic’s actions was erased long
ago. All anyone needs to know is this: Every other major theatre in the
region has hired me since Civic fired me. Interplayers, Lake City
Playhouse, Coeur d’Alene Summer Theatre, Gonzaga University, and
others. All of these institutions saw no problem with the “offense” that was
so terrible that Civic had to fire me two months after my family and I
moved across the country and bought a house here. You’d think I’d be an
untouchable after that, wouldn’t you? I would be, if I had actually done
12
No. 31837-l—lll - dissent
Johnson 12. Ryan
anything wrong. (Unfortunately, the combined wages from all of these
short-term gigs has not come close to providing a wage that is comparable
even to the meager salary I moved here for.)
So we can continue this saga for as long as Civic wants. I have
tremendous patience. Occasionally, some weilnmeaning person will
suggest that I’m “never going to get anything out of them,” and that I
should move on for my own well—being. I appreciate and understand the
sentiment, but the truth is this: It has never oncewnot oncewoccurred to
me that I will not get thejustice I seek. ltjust hasn’t. And so whiie I am
grateful for the concern that motivates those suggestions, I cannot get past
one simple, fundamental counter-argument: Why would I? i am
objectively right. They are demonstrably wrong.
I was given ten days to cease and desist. T hat deadline passed last
week, as l have no intention of doing any such thing. So sue me. . .
CP at 7.
According to James Ryan, he learned, after his termination from empioyment from
the Spokane Civic Theatre, of a great breadth and depth of continuing frustration with
Eeadership of the Theatre. He learned of widespread opinion that Yvonne J ohnson’s
autocratic leadership styie harmed both the volunteers at the Civic Theatre and the
Spokane community as a whole.
James Ryan claims continuing involvement with Spokane area arts and
entertainment. Since his termination from the Civic Theatre, Ryan has worked at all
similar theaters in the region and has donated his services for fundraisers.
James Ryan insists that he only publishes, on his biogs, facts that he witnessed or
confirmed through investigation and research. Ryan claims he does not publish rumors.
He believes all factual statements on his biog to be true. ‘As of May 24, 2013, James I
Ryan’s biog had received over 36,000 hits.
13
No. 3i837—i-III - dissent
Johnson 12. Ryan
PROCEDURE
Yvonne Johnson filed suit against James Ryan for intentional interference with
business expectancy and defamation. Johnson sought damages and injunctive relief.
James Ryan brought a motion, pursuant to RCW 4.24.5 25, the anti-SLAPP statute,
asking that the court strike Yvonne Johnson’s complaint, award him $10,000 in damages
under the statute, and award him reasonable attorney fees and costs. In his anti—SLAPP
motion, Ryan argued that his online postings intended to provide a public forum for
discussion and dissemination of commentary, complaints, and information related to the
Spokane Civic Theatre. He asserted that his online cyber—conduct addressed matters of
public concern as evidenced by the amount of Internet traffic to his blogs.
The Spokane County Superior Court granted James Ryan’s anti—SLAPP motion
after concluding that Ryan’s onlin'e biogging activity addressed a matter of pubiic
concern. The trial court aiso concluded that Yvonne Johnson did not show a probabiiity
that she would prevail on either her tortious interference with business expectancy or
defamation claims.
On appeal, Yvonne Johnson contends the trial court erroneously classified Ryan’s
statements as statements ot‘“public concern” for purposes of the anti~SLAPP statute.
Johnson characterizes Ryan’s attacks on her as a “wholly private” employment dispute
between a disgruntled ex-empioyee and his supervisor. In so arguing, Johnson
14
No. 31837~i~HI ~ dissent
Johnson v. Ryan
emphasizes blogs, in which Ryan discusses his goal to obtain vengeance and money from
the Spokane Civic Theatre.
LAW AND ANALYSIS
Washington Ant‘i~SLAPP Statute
The majority has outlined the provisions of and background to the 2010 Act
Limiting Strategic Lawsuits Against Public Participation. LAWS OF 2010, ch. 118, § 4.
The legislature directed the courts to liberally interpret the Act. A/rrz'e v. Gram, 178 Wn.
App. 506, 315 P.3d 567 (2013), review granted, 180 Wn.2d £008, 325 P.3d 913 (2014).
“This act shall be appiied and construed liberally to effectuate its general purpose of
protecting participants in public controversies from an abusive use of the courts.”
LAWS or 2010, ch. 118, § 3.
Because of its length, RCW 4.24.525, the anti-SLAPP statute, requires a scorecard
to review. in order to understand the substance of the statute, one must refer to
definitions of words found at the statute’s beginning. RCW 4.24.525(4)(a) aiiows a party
to bring a special motion to strike a claim that is based on an “action involving public
participation and petition.” Section 2 identifies the communications protected by the
statute, most of which communications are directed to the government. Nevertheless, the
statute also protects free speech in other contexts. The statute reads, in relevant part:
(2) This section applies to any claim, however characterized, that is
based on an action involving public participation and petition. As used in
this section, an “action. involving public participation and petition”
includes:
15
No. 31837~i—HI — dissent
Johnson v. Ryan
(d) Any oral statement made, or written statement or other
document submitted, in a place open to the public or a public forum in
connection with an issue ofpubiic concern; or
(c) Any other lawful conduct in furtherance of the exercise oftne
constitutional right of free speech in connection with an issue of public
concern.
RCW 4.24.525 (emphasis added).
Note that the statute uses “in connection with an issue of public concern” in two
settings: (1) when the defendant renders a statement on an issue of public concern in a
piace open to the public or in a pubiic forum, (subsection ((1)), and; (2) when the
defendant engages in conduct in connection with an issue ofpubiic concern white
exercising his constitutional right offree speech, (subsection (e)). The majority and I
focus on subsection (d).
The majority concedes that James Ryan wrote the subject statements on the
internet and that the Internet is a public forum. ComputerXpress, Inc. 12. Jackson, 93 Cal.
App. 4th 993, 113 Cal. Rptr. 2d 625 (2001). The crux of the appeal therefore becomes
whether Ryan uttered a statement “in connection with an issue of pubiic concern.” This
court must wrestle with the amorphous clause “in connection with an issue ofpubiic
concern” and decide whether James Ryan’s computerngenerated fulminating fails within
the scope of the fluid phrase. Because of the flexibility of the critical term, I extensiveiy
explore definitions, Washington case iaw, and foreign law to seek an answer.
“The court’s duty in statutory interpretation is to discern and implement the
legislature’s intent.” Lowy v. PeaceHeaith, 174 Wash. 2d 769, 779, 280 P.3d 1078 (2012).
16
No. 3 l837-i-lll - dissent
Johnson v. Ryan
To determine iegislative intent, this court looks first to the ianguage of the statute. Lacey
Nursing Ctr.,1nc. v. Dep ’t‘ ofRevenue, 128 Wash. 2d 40, 53, 905 P.2d 338 (1995). Both the
majority and I find no help in the language alone of the statute to solve this appeal. Thus,
I look to the liberal construction ruie, dictionary definitions, and prior case law in
resolving the question on appeal.
No case addresses Whether portions of a defendant’s targeted. statement or
statements involve a public concern, while other portions of the statements do not. In
other words,courts do not separate the chaff from the wheat. Winning and losing is an
all or nothing proposition.
In Connection With
All anti-SLAP? decisions omit analyzing the prepositional phrase “in connection
with” that precedes the expression “issue ot‘public concern” in RCW 4.24.525.
[triernt‘arnw Webster ’3 Third New International Dictionary variously defines the idiomatic
phrase as the act of connecting, a casual or logical relation or sequence, contextual
relationship, or association. Use of the phrase may suggest that speech protected by the
anti—SLAPP statute need not directly be of pubiic concern, as long as there is some
relevant connection between the speech and a subject of public concern.
One California decision mentions that shielded speech need only have “some
attributes” of“public interest.” Weinberg v. Feisel, 110 Cal. App. 4th 1122, l 132,
2 Cal. Rptr. 3d 385 (2003). The United States Supreme Court and our court, in First
Amendment cases, have noted that even the slightest tinge of “public concern” is
17
No. 31837~1~£H
Johnson 12. Ryan
He asserted that his online cyber-conduct addressed matters of public concern, evidenced
by Internet traffic the biog purportedly received. Ms. Johnson countered that the postings
were merely a private concern and not protected by the statute.
The trial court granted Ryan’s motion after concluding that Ryan’s online blogging
activity addressed speech on a matter of public concern. The trial court awarded Ryan
$10,000 in statutory damages and $8,358.40 in reasonable attorney fees and costs.
Johnson appealed.
LAW AND ANALYSIS
In 1989, Washington adopted the nation’s first anti~SLAPP law, still codified
under RCW 4.24.500 to .520. The iaw, known as the BrendaI-Iill Bill, provides immunity
from civil liability for claims based on good-faith communication with the government
regarding any matter of pnbiic concern. Toni Wyrwich, A Curefor a “Public Concern
Washington ’3 New Anti—SLAPP Law, 86 WASH. L. REV. 663, 669 (201 l). The Brenda
Hill Biil was not without defect, since it did not provide a method for eariy dismissal. Id.
With courts unable to dismiss SLAPPS before discovery, defendants had no means of
escaping the significant legal expenses SLAPPS purposefully inflicted. Id. at 669—70.
in March 2010, the Washington Legisiature passed its Act Limiting Strategic
Lawsuits Against Pubiic Participation. LAWS OF 20i0, ch. 1 18, § 4. The Washington Act
No. 31837—1-lli - dissent
Johnson v. Ryan
sufficient to satisfy the element of“pu‘olic concern.” Connich v. Myers, 461 U.S. 138,
147-49, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Binlcley v. City ofTacoma, 114 Wash. 2d
373, 383 n.8, 787 P.2d 1366 (1990).
This court’s majority contradicts the precedents of Connich and Binkley when
writing: “in Dillon [1». Seattle Deposition Reporters, DEC, 179 Wash. App. 41, 316 P.3d
1119, review granted, 180 Wash. 2d 1009, 325 P.3d 913 (2014)], we find further support for
the proposition that speech that only tangentially implicates a public issue is not a matter
of public concern.” Majority at 18. Our recent decision in Dillon does not support this
proposition. The majority cites the Dillon passage: “‘ [I]t is the principal thrust or
gravamen of the plaintiffs cause of action that determines whether the anti—SLAPP
statute applies and when the allegations referring to arguably protected activity are only
incidental to a cause of action based essentially on nonprotected activity, collateral
allusions to protected activity should not subject the cause of action to the anti-SLAPP
statute.’ ” Dillon, E79 Wn. App. at 72 (quoting Martinez v. Metabolife lni’l, Inc, 113
Cal. App. 4th 181, 188, 6 Cal. Rptr. 3d 494 (2003)). The majority fails to note that
Dillon borrowed this quote from the California decision Martinez. More importantly, the
“gravamen” to which this passage refers is the gist of the legal claims, allegations, and
causes of action of the plaintiff, not the gist of the speech for which the defendant is sued.
in. Dillon, the gravamen of the plaintiff” s complaint was the defendants’ recording of a
conversation without plaintiff’s permission rather than the content of speech.
18
No. 318374-111" dissent
Johnson v. Ryan
Dictionary Definitions of Public Concern
The antimSLAPP statute does not define what constitutes an “issue of public
concern.” Undefined statutory terms must be given their usual and ordinary meaning.
Dominick v. Christensen, 87 Wash. 2d 25, 27, 548 P.2d 541 (1976); Nationwide Ins. v.
Williams, 71 Wash. App. 336, 342, 858 P.2d Std (1993).
Black’s Law Dictionary does not define either “public concern” or “concern.”
Black’s defines “public interest,” in relevant part, as: “Something in which the public as a
whole has a stake.” BLACK’s LAW DICTIONARY 1425 (10th ed. 2014). The same
dictionary defines “interest,” in part as “[t]he object of any human desire.” BLACKS,
supra, at 934. A lay dictionary defines concern, in part, as a marked interest or regard
and a matter for consideration.
These dictionary definitions provide little assistance in answering our question
other than to suggest that the public as a Whole must be interested in the subject matter. I
assume not every member of the public need be interested in a subject of public concern,
since no topic captures the attention or concern of every person. The interest of a
significant number of citizens is sufficient. The definitions do not distinguish between
the public holding a legitimate interest in the issue or if a prurient or sensational interest
suffices for protection.
I include in the list of dictionary definitions the phrase “public interest.” The
dictionary definitions suggest that the phrases “public concern” and “public interest” are
synonymous. I Will analyze this implication later.
19
No. 31837-1411 — dissent
Johnson 1», Ryan
Washington Case Law on Public Concern
Division One of this court, in several current decisions, has boldly gone before us
in addressing the meaning of “public concern” under Washington’s anti—SLAP? statute.
The prior decisions give both a broad definition and then explore factors to conSider
when deciding whether speech contains matters of public concern. Under the broad
definition, speech deals with matters of “public concern” when it can “‘be fairly
considered as relating to any matter ofpolitical, social, or other concern to the
community.m Spi‘all v. Toff, 180 Wash. App. 620, 632, 324 P.3d 707 (2014);Davis v. Cox,
180 Wash. App. 514, 531, 325 P.3d 255 (2014) (quoting Snyder v. Phelps, 562 US. 443,
131 S. Ct. 1207, 1216, 179 L. Ed. 2d 172 (2011)). Use offactors may arise from the
difficulty in forming a comprehensive and workable definition of “public concern.” The
term “public concern” does not lend itseif to a precise, all-encompassing definition.
Alaska. Structures, Inc. v. Hedlund, 180 Wash. App. 591, 599, 323 P.3d 1082 (20 i4)
(quoting No. 2:13—CV—001 16, 2013 WL 4853333, at *5, 2013 US. Dist. LEXIS 129204,
at *16 (ED. Cal. Sept. 10, 20i3)). “The boundaries of the public concern test are not
well defined.” Snyder, 131 S. Ct. at 1216 (quoting City ofSarz Diego 1). Roe, 543 US.
77, 83, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004)). Because the legislature’s intent in
adopting RCW 4.24.525 was to address lawsuits brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition. for the redress of
grievances, this court looks to First Amendment cases to aid in its interpretation. Davis,
180 Wn. App. at 530', City ofSeartle v. Egan, 1.79 Wn. App. 333, 338, 317 P.3d 56820
No. 3 i 83 7-l—lil a dissent
Johnson v. Ryan
(2014) (quoting LAWS OF 2010, ch. 118, § l(l)(a)).
Alaska Structures v. Hedlund, 180 Wash. App. 591 (2014) presents the fullest
analysis of the phrase “public concern.” The Hedlund court employed the California
decision, Rivero v. American Federation ofState. County, and Municipal Employees,
AFLHCIO, 105 Cal. App. 4th 913, 9245 130 Cal. Rptr. 2d 8% (2003), for outlining a series
of categories for determining whether a statement impiicates an issue of public interest
and fails Within the protection of the anti-SLAP}? statute. Hedlund, 180 Wn. App. at
599—600. The first category comprises instances when the statement was of “a person or
entity in the public eye.” The second category comprises circumstances when the
statement “involved conduct that could affect a large number of peopie beyond the direct
participants.” A third category comprises situations when the statement entailed “a topic
of Widespread, public interest.”
The Hedluno’ court also quoted from Weinberg v. Feisel, 110 Cal. App. 4th 1122,
1132, 2 Cal. Rptr. 3d 385 (2003), when sketching relevant factors for determining an
issue of public concern or public interest. Public interest does not equate with mere
curiosity. A matter of public interest should be something of concern to a substantial
number ot‘peopic. A matter of concern to the speaker and a relatively small, specific
audience is not a matter of public interest. There should be some degree of closeness
between the challenged statements and the asserted public interest. The assertion ofa
broad and amorphous public interest is not sufficient. The focus of the speaker’s conduct
should be the public interest rather than a more effort to gather ammunition for another
21
No. 318374411 - dissent
Johnson v. Ryan
round of private controversy. Those charged with defamation cannot make their target
into a public figure. Alaska Structures, Inc. v. Hedlund, 180 Wn. App. at 602-03.
In a defamation case, this court explored the meaning of “public concern” in the
context of a news story about a iawsuit brought by Microsoft for software piracy.
Whether an allegedly defamatory statement pertains to a matter of
public concern depends on the content, form, and context of the statement
as shown by the entire record. Here, the challenged story relates to a court
decision resolving an inteilectual property dispute between a major
software manufacturer and a local retailer. Viewed narrowly, the story
pertains to a private dispute between two business entities. In a broader
context, however, the dispute touches on a matter of public importance,
software piracy. The public concern is heightened by the fact that Alpine
apparently sold counterfeit software to the general consumer. In an age
where the use ofpersonal computers is widespread, the retail distribution of
pirated software is a matter of acute importance to general consumers. This
is a matter where the First Amendment plays a role in ensuring the free
flow of information to the public. Accordingly, the Dan & BradstreerL Inc.
v. Greenmoss Builders, Inc, 472 US. 749, 105 S. Ct. 2939, 86 L. Ed. 2d
593 (1985)] factors indicate the Alpine case was a matter of public concern
deserving of heightened protection.
Alpine Ina’us. Computers, Inc. v. Cowles Pabl’g C0,, 114 Wash. App. 371, 393-94, 57 P.3d
i 178 (2002) (citation omitted). The decision illustrates that a private dispute and a
lawsuit may be of public concern.
The majority relies on Tyner v. Department ofSocz'aZ & Health Services (DSHS),
137 Wash. App. 545, 354 P.3d 920 (2007) for concluding that James Ryan’s speech was
not in connection with an issue of public concern. DSHS discharged Paula Tyner as part
of a reduction in force, but subsequently reassigned her to a different position. She sued
claiming DSHS reassigned her in retaliation for her exercising free speech rights. Tyner
22
No. 31837—1411 - dissent
Johnson v. Ryan
lacks a correlation to anti-SLAP}3 iaw, because of the unique test employed when
determining whether the government violates an employee’s free speech rights when
discharging or demoting a government employee after the employee criticizes the
employer. The court baiances the employee’s interest with the interest of the government
in promoting the efficiency of the public services. The government has legitimate
interests in regulating the speech of its employees that differ significantly from its interest
in regulating the speech ofpcople generally. Binkley v. City ofTacoma, 1 l4 Wn.2d 373,
381—82, 787 P.2d 1366 (1990).
More importantly, the Tyner court noted that speech on the job generally is not a
matter of public concern because the speech is not disseminated to the public. Paula
Tyner’s eninmnnication occurred in the work setting. The court held that “a comment
addressed solely to an internal audience without any intent to bring it to the pnblic’s
attention does not constitute a matter of public concern.” 13'? Wn. App. at 558. Our
majority ignores this holding. James Ryan wrote his hlog after being discharged from
employment and he disseminated his comments to the Spokane public, ifnot the
universal public. According to Ryan’s unchallenged testimony his blogs received over
36,000 hits. James Ryan was no longer employed when he posted his biogs.
The majority discusses at length White v. State, 131 Wn.2d l, 929 P.2d 396(1997). Judy White, an employee at a state nursing home, alleged the State transferred
her to a new position, in violation of her First Amendment rights, in retaliation for
reporting patient abuse. The court held: “T he fact that White may have had a personal
23
No. 31837—1411" dissent
Johnson 12. Ryan
interest in reporting the incident does not diminish the concern the public would have in
this matter.” 131 Wn.2d at £3. The court held White’s speech to be a matter of public
concern. The court dismissed the suit, however, because White failed to establish a
causal connection between her transfer and her protected speech. The White decision
supports a ruling in favor of James Ryan.
We should apply the anti»SLAPP statute liberally and provide protection to a
speaker if his speech has the slightest shade of public concern. Even ignoring these two
guidelines, the factors and categories outiined in Hedlund compel a conclusion that James
Ryan’s speech, for which Yvonne Johnson sues, embraces an issue of public concern.
When ruling that James Ryan’s writings lie outside the protection of Washington’s
anti-SLAPP statute, the majority cherry picks a few sentences ot‘Ryan’s prose, omits a
review of the compiete blogs, and ignores the backgrounds of the Spokane Civic Theatre
and Yvonne Johnson. Spokane’s leading newspaper quoted Johnson as a gift to the
community, who enabled the Spokane Civic Theatre to regain its standards as a glorious
and reiiable area theater. Johnson was the Civic Theatre’s face to the Spokane public and
other arts organizations. The Civic Theatre fired Ryan because he did not fulfill “high
public standards charged to representatives of the Theatre.” CP at 84. According to
Yvonne Johnson, Ryan’s actions were “public actions” that must satisfy the Theatre’s
diverse community. Because the Spokane Civic Theatre depends on the goodwiii of the
greater Spokane metropolitan. area, Ryan’s conduct exposed. the Theatre to “public
scandai” and oblivion. According to Johnson, the Civic Theatre is a vanguard of the
24
No. 31837~l~lll ~ dissent
Johnson v. Ryan
dramatic arts in Spokane that must push the boundaries of creativity and expression for
the betterment of the community. Art is considered a matter of public concern. United
States v. Alvarez,
U.S.M,132 S. Ct. 2537, 2564,183 L. Ed. 2d 574 (2012); State v.
Crowley, 819 N.W.2d 94, 124 (Minn. 2012).
biogs:
The following is a paraphrased list of comments uttered by James Ryan in his
Yvonne J ohnsoncapitulated to an extortionist but took no steps to
learn the identity of the extortionist.
The Spokane Civic Theatre, through Yvonne Johnson, wrongly
challenged my application for unemployment compensation.
Yvonne Johnson tiled false allegations with the Department of
Employment Security.
Yvonne Johnson falsely accused me of exposing the Spokane Civic
Theatre to public scandal and obscurity.
The Spokane Civic Theatre uttered lies before the Department of
Employment Security.
The Spokane Civic Theatre falsely accused me, in the Employment
Security proceeding of deliberate illegal acts and provoking violence.
The Spokane Civic Theatre cast slanderous aspersions against a
former employee in a government proceeding.
I prevailed in my unemployment compensation claim.
Yvonne Johnson is not an honest and interpersonally competent
executive.
Yvonne Johnson caused undue drama in the drama department.
Yvonne Johnson is malicious.
Yvonne Johnson does not act in the best interest of the Spokane
Civic Theatre.
Yvonne Johnson. exposed the Spokane Civic Theatre to a defamation
claim.
Johnson caused irreparable harm to the Spokane Civic Theatre.
Yvonne Johnson and. the Board of the Spokane Civic Theatre are
bringing negative attention to the Theatre.
Johnson should resign as Executive Artistic Director of the Spokane
Civic Theatre.
Yvonne Johnson and the Board of Directors of the Spokane Civic
25
No. 31837wiwlii — dissent
Johnson v. Ryan
Theatre should be publicly held accountable.
Yvonne Johnson seeks to leave the Spokane Civic Theatre to find a
better and bigger job.
Yvonne Johnson wiii bring drama and divisiveness to any new
employer.
Potential empioyers of Yvonne Johnson should contact me.
Few defendants win in claims brought, in front of a Uniform
Domain Name Dispute Resolution Policy panel, for violating a right to a
domain name, but i won on a claim brought by the Spokane Civic Theatre.
Yvonne Johnson and the Board of the Spokane Civic Theatre wasted
several thousand doiiars of Theatre money by suing me for domain name
infringement.
I iost my wrongful discharge suit against the Spokane Civic Theatre,
which is a disappointment to Yvonne Johnson since my winning the suit
wouid have satisfied my desire for payment.
Because of the dismissal of the wrongfiii discharge case, the
Spokane Civic Theatre must pay serious money to settle my claims.
Yvonne Johnson. intimidated a witness in my wrongqu discharge
suit.
Yvonne Johnson threatens to sue me for defamation and tortious
interference.
The deadline imposed by Yvonne Johnson for suing has passed
without my responding.
Yvonne Johnson can sue me.
All other major theatres in the Inland Empire have hired me since
my tiring from the Spokane Civic Theatre.
Well meaning people tell me that I will receive no money from the
Spokane Civic Theatre.
I am right and the Spokane Civic Theatre is wrong.
I wiil receive justice.
I wiii not end my campaign to hold Yvonne Johnson accountable.
In one or two paragraphs ofhis several blogs, James Ryan discusses his desire to
receive vindication and compensation. The overwhelming discussion, however, is of the
mismanagement of the Spokane Civic Theatre by Yvonne Johnson and its board of
directors. The management of the Theatre impacts many Inland Empirites, not only
26
No. 31837—1—Hl- dissent
Johnson 12. Ryan
James Ryan and Yvonne Johnson. At least one thousand volunteers and donors assist the
Civic Theatre. More attend Theatre productions.
The public should know if Yvonne Johnson mismanages the Spokane Civic
Theatre. The pubiic should aiso know if Johnson is wasting money on litigation, lying to
government entities, and intimidating a witness. James Ryan is engaged in a controversy '
with Yvonne Johnson, but his blogs have not sought ammunition to assist in the
litigation. Johnson and the Spokane Civic Theatre were already in the public eye before
they fired James Ryan.
A consideration of the reiief sought by the party asserting the cause of action can
be a determinative factor when resolving the question of whether speech is of a public
concern for purposes of the anti-SLAP}? statute. Davis v. Cox, 180 Wash. App. 514, 523,
325 P.3d 255 (201.4). A prayer for injunctive relief to preclude the defendant from
speaking is a factor favoring granting an anti-SLAPP motion to strike. Davis, 180 Wn.
App. at 523. Yvonne Johnson seeks injunctive relief against James Ryan for continuing
to post blogs. She seeks a prior restraint on James Ryan’s First Amendment rights.
California Case Law on Public Concern
Washington decisions alone compel a ruling in favor of James Ryan.
Nevertheless, I beiieve California anti~SLAPP decisions bolster the conclusion that Ryan
uttered speech in connection with an issue of pubiic concern. Therefore, I address
whether a Washington court may reiy on California decisions.
27
N0. 3 i 837~ 1 ~11}
Johnson v. Ryan
protects the free expression of Washington citizens by shielding them from meritless
iawsuits designed only to incur costs and chill future expression. Wyrwich, supra, at 663.
The 2010 Washington Act contains a declaration of purpose:
(1) The legislature finds and declares that:
(a) It is concerned about lawsuits brought primarily to chill the vaiid
exercise of the constitutional rights of freedom of speech and petition for
the redress of grievances;
(b) Such lawsuits, called “Strategic Lawsuits Against Pubiic
Participation” or “SLAPPS,” are typically dismissed as groundless or
unconstitutional, but often not before the defendants are put to great
expense, harassment, and interruption of their productive activities;
(0) The costs associated with defending such suits can deter
individuals and entities from fully exercising their constitutional rights to
petition the government and to speak out on public issues;
(d) It is in the public interest for citizens to participate in matters of
pubtic concern and provide information to public entities and other citizens
on public issues that affect them without fear of reprisal through abuse of
the judicial process; and
(e) An expedited judicial review would avoid the potential for abuse
in these cases.
(2) The purposes of this act are to:
(a) Strike a balance between the rights of persons to file lawsuits
and to trial by jury and the rights ofpersons to participate in matters of
public concern;
(b) Establish an efficient, uniform, and comprehensive method for
speedy adjudication of strategic lawsuits against pubiic participation; and
(c) Provide for attorneys’ fees, costs, and additionai relief where
appropriate.
LAWS or 2010, ch. 118, § 1.
NO. 31837—l—lll ~ dissent
Johnson v. Ryan
The majority emphasizes that the California anti-SLAP}.J statute uses the phrase
“public interest,” whereas the Washington statute employs the term “public concern.” in
turn, the majority applies the principle of statutory construction that, if our legislature
modifies a provision of the borrowed statute, the legislature rejects the case law decided
under the contrary language in the borrowed statute. The majority, however, fails to
explain the difference between “public concern” and “public interest.” The majority
withholds enlightenment as to the practical implications between distinguishing between
a subject of public interest and a topic of public concern. The majority provides no
example as to a different outcome depending which phrase is used, nor does it address
whether there would be a different outcome in this appeal under the California statute.
The majority, upon noting the difference in the wording between the Washington
and California statutes, implies that Washington courts should not rely on California
decisions because the California statutory language covers more subjects and affords the
speaker greater protection than Washington’s statutory language. Nevertheless, we do
not know Why the Washington Legislature changed the statutory language from “public
interest” to “public concern.” The Act’s legislative history reveals nothing to explain this
deviation from the California statute. Torn Wyrwich, A Curefor a “Public Concern
Washington ’3 New Anti—SLAPP Law, 86 WASH. L. REV. 663, 684455 (20} 1). We do not
know if the Washington Legislature concluded that the California anti—SLAP? statute
was too broad. For all we know, the opposite is true—that the Washington Legislature
thought “public concern” covered more subjects and provided the speaker greater
28
No. 31837-l-lll - dissent
Johnson 12. Ryan
protection. than Caiifornia’s phrase of “public interest.” If this is true, California
decisions, to the extent they protect the defendants’ speech, are helpful because the
Washington statute covers at ieast the subjects covered by the California statute. Since
the Washington Legisiature wanted the Washington anti—SLl-ttli’lD statute applied iiberally,
we should conclude that the Washington statute provides the same protectionsa if not
more protection: than the Caiifornia statute.
A possible explanation for the difference between the California and Washington
statutes is the Washington Legisiature’s desire for courts to employ First Amendment
decisions when construing the anti-SLAPP statute because First Amendment decisions
use the expression “public concern.” Wyrwich, supra, at 685. This expianation falis
short, however, since California cases also look to First Amendment cases when applying
its antinLAPP statute. Weinberg V. Faisal, 110 Cal. App. 4th 1122, 1132, 2_ Cal. Rptr. 36
385 (2003).
Contrary to the majority’s position, Washington courts look to California
decisions in answering questions posed. by the anti-SLAPP statute. Sprain v. Tofi, 180
Wash. App. 620, 630-31, 324 P.3d 707 (2014); Alaska Structures, Inc. v. Hedlund, 180 Wn.
App. 59i, 6024B, 323 P.3d 1082 (2014). Washington courts have never heid that
California decisions addressing the nature of “public interest” are inapposite when
addressing the nature of “public concern.” To the contrary, the Hedlund court cited and
used. fifteen California cases when exploring the extent of “an issue ofpubiic concern.”
Alaska Structures, Inc. v. Hedlund, 180 Wn. App. at 599-603. Our majority even
29
No. 31837—l-Hl - dissent
Johnson 12. Ryan
includes a quote from the California decision 01“ Weinberg in construing the meaning of
“public concern,” despite earlier proclaiming to disown California case law. Majority at
1344.
The majority also uses California law when it erroneously claims that speech that
only tangentially implicates a public issue is not a matter of public concern. Majority at
18. The majority cites Dillon v. Seattle Deposition Reporters, 179 Wn. App. at 72 (2014)
for the misplaced proposition, but the Dillon language comes from Martinez 12.
Metabolife International, Inc, 113 Cal. App. 4th 181, 188, 6 Cal. Rptr. 3d 494 (2003).
The majority cites California decisions when California law suits its purposes.
in another setting, the Washington Supreme Court used the terms public “interest”
and “concern” interchangeably. See Taskett V. KING Broadcasting C0,, 86 Wash. 2d 439,
440, 442, 444, 546 P.2d 81 (1976), In her briefing, Yvonne Johnson relies on California
cases when arguing what constitutes an issue of “public concern.” In short, we should
look to California decisions when deciding if a defendant”s statements deserve protection
under the Washington anti—SLAPP statute. Although the Washington statute and case
law is sufficient to hold James Ryan’s speech of public concern, California cases bolster
this conclusion.
Based on the three categories found in Rivera v. American Federation of State,
County, and Municipal Employees, AFL—CIO, 105 Cal. App. 4th 913, 130 Cal. Rptr. 2d
81 (2003), California cases hold that consumer information posted on web sites concern
issues ofpublic interest. Malcaeflv. Trump Univ., LLC, 715 F.3d 254, 262 (9th Cir.
30
No. 318374-111- dissent
Johnson 1). Ryan
2013) (applying California law); Wong v. TaiJing, 189 Cal. App. 4th 1354, 117 Cal.
Rptr. 3d 747 (2010); Gilbert v. Sykes, 147 Cal. App. 4th 13, 23, 53 Cal. Rptr. 3d 752(2007). In Gilbert, the court held a patients-statements about a plastic surgeon were of
public interest because the information provided was material to potential consumers
“contemplating plastic surgery.” In Wong, a review on Yelp.com criticizing dental
services and discussing the use of silver amalgam, raised issues of public interest. The
Ninth Circuit Court of Appeals, in Makaefl, held that statements warning consumers of
fraudulent or deceptive business practices constitute a topic of widespread public interest,
so long as they are provided in the context of information helpful to consumers.
Although theatergoers may not be characterized as consumers, they are customers
or patrons of the arts. Providing them information on the management of the Spokane
Civic Theatre should be a matter of public concern.
Other California decisions stand for additional propositions. Even purely private
speech may be covered by an'anti-SLAPP statute if it concerns a public issue. Averill v.
Superior Court, 42 Cal. App. 4th 1170, ll74, 50 Cal. Rptr. 2d 62 (1996). The creative
process underlying the production of arts and entertainment is a matter of public concern.
Tamkirz v. CBS Broadcasting, Inc, 193 Cal. App. 4th 133, 14344, 122 Cal. Rptr. 3d 264(2011). Unilattering speech by a former employee about working conditions at a private
company is an issue of public interest when the company and its founder spent a great
deal of money and effort to promote the business. Nygard, Inc. 12. Time Uusi-Kerrrula,
159 Cal. App. 4th 1027, 1033, 1042, 72 Cal. Rptr. 3d 210 (2008). Untiattering speech on
31
No. 31837—1411 n dissent
Johnson v. Ryan
a “Rants and Raves” website by a former employee about a private bank’s management
decisions was a public issue when the bank actively promoted itself as a “community
partner” and its chief executive officer had been the subject of media attention. Summit
Bank v Rogers, 206 Cal. App. 4th 669, 694, 142 Cal. Rptr. 3d 40 (2012). Under the
California antimSLAPP statute, statements held to involve issues ot‘pnblic interest include
criticism of the management of a publicly traded company. ComputerXpress, Inc. 12.
Jackson, 93 Cal. App. 4th 993, 1007-08, 113 Cal. Rptr. 2d 625 (2001); Global Telemeclla
Int’l, Inc. v. Doe, 132 F. Supp. 2d 1261 (CD. Cal. 2001). Examples ot‘matters ofpublic
interest may include activities of private entities that may impact the lives of many
individuals. Church ofScienlology v. Wellershelm, 42 Cal. App. 4th 628, 650, 49 Cal.
Rptr. 2d 620 (1996).
A California court also held criticism of the manager ofa homeowners association
to be a matter ofpnblic interest. Damon 12. Ocean Hills Journalism Club, 85 Cal. App.
4th 468, 479, 102 Cal. Rptr. 2d 205 (2000). In the latter case, the management and
welfare of a large residential community was a matter ofpublic interest. The Damon
court noted the mandate to broadly construe the anti-SLAPI3 statute. The anti-SLAPP
statute applies regardless of whether the “primary purpose” of the lawsuit is to vindicate
the damage done to plaintiff’s reputation and not to interfere with the defendant’s
exercise of his free speech rights.
Another case helpful to James Ryan is Averill v. Superior Court, 42 Cal. App. 4th
li70, 50 Cal. Rptr. 2d 62 (1996). A charitable organization sued Averill after she made
No. 31837~1~III~ dissent -
Johnson v. Ryan
allegedly slanderous remarks about the organization to her employer. The einpioyer was
supporting the organization’s home for battered women, which Averill publicly opposed.
Even though Averill’s remarks were made in a private setting, the court held the suit
subject to the anti-SLAPP statute. The court stressed the fact that, while the remarks
were private, the subject of the remarks—the home for battered womenwwas a topic of
considerable public controversy.
Yvonne Johnson emphasizes that the Spokane Civic Theatre is not a government
entity and she argues that she is not a public figure. Johnson ignores, however, that the
Theatre operates by the help of one thousand volunteers and with. donations from
throughout the Spokane community. Thus, thousands of Spokanites hold. concern about
the operation of the Spokane Civic Theatre. Averill stands for the proposition that a
nonprofit organization can be a matter of public interest and criticism of the organization
can be protected by an anti—SLAP? statute.
Motivation of James Ryan
Yvonne Johnson characterizes James Ryan’s comments as an attempt to coerce,
through slander, a monetary settlement from the Spokane Civic Theatre or herself. Based
on this characterization, Johnson argues that the antiuSLAPP statute does not apply
because Ryan seeks to further only personal, financial interests. She contends a
defendant in an ordinary private dispute cannot take advantage of the anti~SLAPP statute
simply because the complaint contains some references to speech or petitioning activity
by the defendant, citing Dillon 12. Seattle Deposition Reporters, LLC, 179 Wash. App. 41,
33
No. 31837-1—111 — dissent
Johnson v. Ryan
71, 316 P.3d 1319, review granted, 180 Wash. 2d 1009, 325 P.3d 913 (2014).
The majority accepts Yvonne J ohnson’s portrayal of James Ryan’s speech. The
majority summarizes James Ryan’s speech as: Johnson wrongfully terminated me; she
caused me financial damages and embarrassment; I will cause her financiai damages and
embarrassment. The majority characterizes these thoughts as the “dominant themes” of
Ryan’s writings. 1 am. nonplused as to how the majority assesses the “dominant theme”
ofJames Ryan’s cyber chatter. A readin of the blogs as a Whole shows one of the
dominant themes to be the mismanagement of the Spokane Civic Theatre. The statute
requires a “connection” to pubiic concern not that this concern be the primary motive.
Ryan’s repeated discussion of the Theatre’s mismanagement provides this connection.
1 recognize portions of James Ryan’s biogs 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, J ames Ryan is not a sympathetic
defendant, but an undesirable defendant needs the protection afforded by the anti-SLAP?
statute more than does an attractive defendant.
Even if coercion and vengeance were the prime motivation of James Ryan, the
antiuSLAPP statute does not exclude speech from its protection if the speaker seeks to
gain money, as ion g 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. N0 language in RCW 4.24.525 excludes, from the statute’s shieid,
speech motivated by greed or revenge. No case iaw supports such a contention.
34
No. 31837-l-lll - dissent
Johnson v. Ryan
Some of the world’s finest literature addressing a tOpic of public and grave
concern was written. in a spiteful spirit. A prime example is Ida Tarbell’s History of the
Standard Oil Company, which depicts John D. Rockefeller, Sn, as a crabbed, iniseriy,
greedy monopolist. Tarbell penned the book from enmity and vengeance resulting from
Rocket‘eller‘s ruthless tactics that put her father out of the oil business. New York
University listed the book as number five on a 1999 list of the top 100 works of twentieth
century journalism.
Yvonne Johnson was in the public eye as a result of her leading position with a
cherished community theater and newspaper articies praising her performance. One in
the public eye soon learns that unfair attacks often follow public praise. The remedy for
verbal abuse, however, is not found in a lawsuit. Johnson should find some consolation
that many readers find James Ryan’s blogs obsessive, boorish, and foolish. Also, a
court‘s ruling or this dissenter’s vote for protection of speech does not denote approval of
the speech. Whether hyperbolic or sensational, the speech at issue in this case bears a
connection to an issue of public concern: Spokane’s Civic Theatre and its management.
Probability ofJonnson Prevailing on Claims
The antiuSLAPP motion procedure statute dictates that, after the moving
party has shown that the claims at issue seek to impose liability for statements “in
connection with an issue of public concern,” “the burden shifts to the responding party to
establish by clear and convincing evidence a probability of prevailing on the claim.”
RCW 4.24.525(2)(d), (4)(b). The majority does not address whether Yvonne Johnson
35
No. 31837~1—JH ~ dissent
Johnson 12. Ryan
meets this burden, since the majority rules that James Ryan has not shown his speech
invoived a matter of public concern. In the public interest of brevity and being motivated
by public concern, i win aiso refrain from anaiyzing this question in detail. I agree with
the trial court that Johnson did not meet her burden.
Concurring Opinion
Although the concurring opinion does not seek to base the majority” s decision on
the Washington Constitution, the opinion mentions articie L section 5 of the Washington
Constitution that demands that a speaker be responsible for the abuse of the right to freely
speak and write. Yvonne Johnson has not asserted this internally inconsistent
constitutionai provision as a basis for relief. Johnson quoted the provision in the
introduction to her reply brief, but did not discuss its application to her claims. Under
RAP £2.1(a), this reviewing court decides a case only on the basis of issues forwarded by
the parties in their briefs.
CONCLUSION
The 2010 anti-SLAPP statute, RCW 4.24.525, immunizes James Ryan from the
tort claims of Yvonne J ohnson. The trial court’s dismissal of Johnson’s complaint should
be affirmed.
if '
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Fearing, J.
36
No. 318374-111
Johnson v. Ryan
This declaration of purpose evidences the legislative goals of balancing the rights
of both plaintiffs and defendants, yet allowing expedited judicial review and dismissal of
those defamation claims brought abusiver for the primary purpose of chilling protected
public speech. The iegislature directed courts to apply and construe the Act “liberally to
effectuate its general purpose of protecting participants in public controversies from an
abusive use of the courts.” LAWS OF 2010, ch. 118, § 3.
The new addition to Washington’s anti—SLAP]? laws is codified at RCW 4.24.525.
RCW 4.24.525(4)(a) allows a party to bring a special motion to strike any claim that is
based on an “action involving public participation and petition.” Section 4 of the statute
outiines the procedure to foliow to respond to a SLAPP suit. The section provides:
(4)(a) A party may bring a speciai motion to strike any claim that is
based on an action involving public participation and petition, as defined in
subsection (2) of this section.
(b) A moving party bringing a special motiou to strike a ciaim under
this subsection has the initial burden of showing by a preponderance of the
evidence that the claim is based on an action involving public participation
and petition. If the moving party meets this burden, the burden shifts to the
responding party to establish by clear and convincing evidence a probabiiity
of prevaiiing on the claim. If the responding party meets this burden, the
court shall deny the motion.
(c) In making a determination under (b) of this subsection, the court
shall consider pleadings and supporting and opposing affidavits stating the
facts upon which the liabiiity or defense is based.
RCW 4.24.525.
No. 31837~1~111
Johnson v. Ryan
in deciding an anti-SLAP? motion, a court must follow a two step
process. A party moving to strike a claim has the initial burden of
showing by a preponderance of the evidence that the claim targets
activity “involving pubiic participation and petition,” as defined in
RCW 4.24.515(2). US. Mission Corp. v. KIRO TV, Inc, 172 Wn.
App. 767, 782-83, 292 P.3d 137, review denied, 177 Wash. 2d 1014,
302 P.3d 181 (2013). lfthe moving party meets this burden, the
burden shifts to the responding party “to establish by clear and
convincing evidence a probability of prevailing on the claim.”
RCW 4.24.525(4)(b). 1f the responding party fails to meet its
burden, the court must grant the motion, dismiss the offending claim,
and award. the moving party statutory damages of $10,000 in
addition to attorney fees and costs. RCW 4.24.525(6)(a)(i), (ii).
Davis v. Cox, 180 Wash. App. 514, 528, 325 P.3d 255 (2014) (quoting Dillon 12.
Seattle Deposition Reporters, LLC, 179 Wash. App. 41, 67—68, 316 P.3d 1119,
review granted, 180 Wash. 2d 1009, 325 P.3d 913 (2014)).
Because RCW 4.24.525 provides an expedited summary judgment procedure,
courts apply summary judgment standards when ruling upon RCW 4.24.525 motions to
strike: “‘ [T]he triai court may not find facts, but rather must view the facts and all
reasonable inferences in the light most favorabie to the plaintif .’ ” Davis, 180 Wn. App.
at 528 (quoting Dillon, 179 Wn. App. at 90). In addition, we review the grant or denial of
an anti-SLAP? motion de novo. Dillon, 179 Wn. App. at 70; City ofLongview v. Wallin,
.174 Wn. App. 763, 776, 301 P.3d 45, review denied, 178 Wn.2ct 1020, 312 P.3d. 650
(2013).
10