Holland & Knight's National Media and Communications Team Achieves Significant Victory in Groundbreaking Defamation Lawsuit
June 18, 2008
Judith Frances Bonilla - Washington
Leighton T. Brown- Washington
Shelley G. Hurwitz- Los Angeles
Charles D. "Chuck" Tobin- Washington
Hsiang Chun "Stacey" Wang- Los Angeles
WASHINGTON, D.C. – Holland & Knight's national Media and Communications team celebrated a significant victory recently in the California Court of Appeal, which vacated a trial court order compelling the deposition of a journalist being sued for libel. The ruling clears the way for the dismissal of the underlying libel lawsuit and the recovery of defense fees.
A team of Holland & Knight attorneys, including Chuck Tobin, chair of Holland & Knight's Media and Communications Team, Shelley Hurwitz, Judith Bonilla, Leighton Brown and Stacey Wang, worked on behalf of the client, Susan Paterno, a freelance writer and journalism professor in Orange County, Calif. This ringing endorsement of a free press arose out of an article written by Paterno in the December 2006 issue of American Journalism Review (AJR). AJR, a bimonthly magazine that critiques the media and is published at the University of Maryland, retained Holland & Knight to defend Paterno.
Paterno's article reported on the turmoil at the Santa Barbara News-Press, where dozens of journalists have quit or been fired in disputes with the newspaper's wealthy owner, Wendy McCaw. Ampersand Publishing, McCaw's company, sued Paterno for defamation, alleging her account was biased, false and hurt the newspaper's circulation.
On Friday, June 13, the appeals court in Santa Ana, Calif. issued a writ that reversed the trial court's order from 2007 permitting discovery from the reporter. The trial court had overruled the newspaper's objections under California's anti-SLAPP (strategic lawsuits against public participation) statute. Under the statute, defendants file early challenges that test the merits of free speech cases in affidavit-based proceedings, and discovery is stayed. If the judge determines the plaintiff has no probability of prevailing on the merits, the case is dismissed and the defendant is awarded fees.
The appeals court agreed with the Holland & Knight team that the trial judge erred in holding portions of Paterno's article actionable and in allowing her deposition. Specifically, the panel held that, contrary to the view of the trial court, Paterno's
- report on newspaper management's decision to kill a story about its editor's sentencing for drunk driving was not false
- account of a restraining order lawsuit the newspaper brought against an employee was privileged
- description of an alteration in employee benefits as "slashed" was a protected expression of the employees' opinion
The appeals court rebuked the plaintiff's central argument that allegedly biased journalism is actionable. And as Holland & Knight suggested in the briefs, the appeals court raised an eyebrow at this particular plaintiff for filing a defamation lawsuit: "It is ironic that Ampersand, itself a newspaper publisher, seeks to weaken legal protections that are intended to secure the role of the press in a free society."
The Holland & Knight team will return to the trial judge to press for dismissal and the mandatory fee award under the anti-SLAPP statute.
Contact: Susan Bass (813) 769-4326