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California anti-SLAPP law applies to San Jose defamation case

A California appeals court ruled that alleged defamation of a Vietnamese-American attorney and newspaper owner was protected speech within the anti-SLAPP law and returned the case to superior court to rule on the likelihood of the defamation suit prevailing. -DB

Metropolitan News-Enterprise
April 20, 2009
By Kenneth Ofgang

A suit accusing a San Jose broadcaster of defaming a local attorney by accusing him of ties to Vietnamese Communists arose from protected activity within the meaning of the anti-SLAPP statute, the Sixth District Court of Appeal ruled Friday.

The justices overturned an order denying a motion by KSJX-AM and others to strike the action brought by attorney Tam Nguyen. The panel sent the matter back to Santa Clara Superior Court so that it can determine whether Nguyen can avoid dismissal by showing a likelihood of prevailing and rule on the defendant’s objections to a translation.

In addition to his law practice, Nguyen publishes SaigonUSA News, a biweekly newspaper that circulates among Vietnamese Americans in the San Jose area. He is also involved in community issues and has served on charitable boards and the city Library Commission.

Two years ago, he brought his defamation suit against KSJX, Tronh Dinh Do, Vein Thao Media, Inc. and Tung Than Vo. Do owns Vien Thao Media and is, according to his declaration, a “businessman, publisher, editor, television and radio commentator, entertainment promoter and charity fund-raising organizer and [has] been active and well-known in the local Vietnamese community of Santa Clara County for more than twenty years.”

Nguyen accuses Do of having made numerous false statements on KSJX, including that Nguyen “went to Vietnam to take order from the Counter Intelligence Agency from Ha Noi to destroy our community,” that he “may be suffering from sexual and psychological disorder,” that he used his newspaper to “curse at…and defame” San Jose Councilwoman Madison Nguyen, that he had his picture taken with a Communist former prime minister of Vietnam, that he had continuing ties with Communist officials in that country, and that he had a portrait of Ho Chi Minh displayed in his house.

The defamatory comments, Nguyen said in support of his motion, were broadcast more than 20 times in one week and were repeated in full, on Do’s orders, in the weekly Tin Viet News.

In moving to strike the action, the defendants asserted that the suit arose from protected activity in connection with a public issue, and the plaintiff responded that there was no public issue involved and that he was subjected to a personal attack, apparently motivated by criticism his newspaper had made of Do.

A Superior Court judge denied the motion, reasoning that Do was attacking Nguyen’s character, not his politics, and was doing so “based upon old controversies, rather than an ongoing controversy.”

But Justice Nathan Mihara, in his unpublished opinion for the Court of Appeal, noted that the anti-SLAPP statute applies to statements made “in connection with an issue of public interest” and that the term has been broadly defined in early cases.

The evidence, Mihara said, supports Do’s contention that his statements were part of an ongoing debate within the Vietnamese American community.

“Though the issue of which members of the Vietnamese American community in the San Jose area are or have been affiliated with communism may not be of particular interest to the public at large, it has immense significance in the Vietnamese American community, particularly since the alleged defamatory statements refer to an individual who is prominent in Vietnamese American media,” Mihara explained. “ Defendants’ broadcasts occurred in the context of this ongoing controversy, and the protection of these statements would further the public interest in encouraging participation in the discussion of the political affiliation of those involved in the media.”

The case is Nguyen v. KSJX-AM 1500, H032686.

Copyright 2009 Metropolitan News-Enterprise

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