California appellate court deals blow to efforts to strike lawsuit under anti-SLAPP statute

A prominent lawyer argues that a state appellate court made the wrong call in reversing a lower court decision to dismiss a defamation lawsuit brought by a staunchly pro-Israel journalist against two critics. Sam Bayard argues in part that the contested statements against the journalist were reflective of strong emotions rather than factual statements and therefore libelous. -DB

Citizen Media Law Project
Feb. 12, 2009
By Sam Bayard

On February 9, a California appellate court reversed [1] a trial court that had granted [2] Richard Silverstein [3] and Joel Beinin [4]’s motion to strike Rachel Neuwirth [5]’s defamation lawsuit against them under the California anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16 [6]).

Neuwirth, a journalist and political commentator who espouses staunchly pro-Israel views, sued over two allegedly defamatory statements, one made by Silverstein on his blog, Tikun Olam [7], and the other made by Beinin on the “Alef [8]” listserv and subsequently re-published by Silverstein. Neuwirth (one one side) and Silverstein and Beinin (on the other) are ideological foes on issues surrounding the Israeli-Palestinian conflict, and they had many unpleasant exchanges on various Internet fora before the statements complained about in the lawsuit were made.

In the lawsuit, Neuwirth claimed that Silverstein libeled her by calling her a “Kahanist swine” on his blog, thereby accusing her of being a member of a terrorist organization (Kahane Chai is a group listed on the U.S. State Department’s list of terrorist organizations [9]). In a second count, she alleged that Beinin libeled her by claiming that she made a death threat against him, and that Silverstein repeated the statement on his blog.

The lower court ruled that California’s anti-SLAPP statute covered Neuwirth’s claims and that Neuwirth failed to show a probability of success on the merits of her claim. It found that Neuwirth had not introduced sufficient evidence of actual malice on the part of Silverstein or Beinin, and also ruled that the “Kahanist swine” statement was non-actionable opinion because, when read in context, no reasonable reader would assume that Silverstein meant to assert that Neuwirth was actually a terrorist or actually a swine. (For details, see our previous post [10] on the lower court’s decision.)

In Monday’s decision [1], the appellate court agreed that the anti-SLAPP statute applied to Neuwirth’s lawsuit, holding that Beinin and Silverstein’s statements were made in a “public forum” (that is, on websites) in connection with an “issue of public interest” (that is, Israeli-Palestinian relations). But, the appellate court disagreed with the lower court’s determination that Neuwirth had failed to show a probability of succeeding on the merits of her claims. Specifically, the appellate court held that the lower court wrongly determined that Neuwirth had not presented any evidence of actual malice, concluding that “not only Neuwirth’s evidence but also Silverstein’s and Beinin’s own evidence” undermined this conclusion. The court therefore reinstated the defamation claims against Silverstein and Beinin (except for the claim against Silverstein for re-publishing Benin’s statement, barred by section 230 of the Communications Decency Act [11]) and sent the case back to the lower court for further proceedings.

Not having examined the record before the appellate court, I can’t say whether the appellate court’s specific finding on actual malice was warranted. But, I disagree with the court’s assumption that Silverstein’s “Kahanist swine” comment is a statement of fact that can form the basis for a defamation claim, rather than a statement of Silverstein’s subjective opinion about Neuwirth’s political views.

The court gave this issue surprisingly cursory treatment. It accepted Neuwirth’s argument that “case law” establishes that calling someone a “Kahanist” is tantamount to calling someone a terrorist. The court apparently relied (it’s hard to tell) on Kahane Chai v. Department of State, 466 F.3d 125 (D.C. Cir. 2006), a non-defamation case that simply upheld the Secretary of State’s designation of the Kahane Chai organization as a foreign terrorist organization. In a footnote, the court also quoted from a 1959 California defamation case standing for the unremarkable proposition that calling someone a “communist” can sometimes be defamatory. See MacLeod v. Tribune Publ’g Co., 52 Cal.2d 536, 551 (Cal. 1959).

In my view, the court’s error was failing to examine the “Kahanist swine” statement in context. California defamation law requires a court to employ a “totality of the circumstances” test to determine whether a reasonable reader would conclude that a statement is an assertion of objective fact rather than subjective opinion. See Baker v. Los Angeles Herald-Examiner, 42 Cal. 3d 254, 260-61 (1986). This requires a court to consider the immediate context of the communication and the broader social context in which the challenged statement was made. See id. at 261. The importance of context is especially strong “when the surrounding circumstances of a statement are those of a heated political debate, where certain remarks are necessarily understood as ridicule or vituperation, or both, but not as descriptive of factual matters.” Koch v. Goldway [12], 817 F.2d 507, 509 (9th Cir. 1987) (applying California law). The appellate court’s opinion [1] doesn’t carry out this analysis.

I have no doubt that under many circumstances calling someone a “terrorist” conveys a factual assertion; I just don’t believe that this is one of them. For instance, a news report could assert that someone had joined a terrorist cell or provided funds to a terrorist organization, and in all likelihood reasonable readers would understand this as an assertion of fact. But, given the acrimonious political and personal debate between the parties to this lawsuit, and Neuwirth’s public persona as a writer and political commentator, reasonable readers of Tikun Olam [7] could only see Silverstein’s statement as a barbed political charge, not an assertion that Neuwirth actually engaged in terrorist activities.

Silverstein’s comment most resembles calling someone a “fascist pig” in the heat of an argument — it is not very nice, it may not even be a fair characterization, but it is not a statement of fact that can be proven true or false. Many cases have held that politically oriented denunciations like this are not actionable. See, e.g., Koch [12], 817 F.2d at 509 (mayor’s comments associating political opponent with Nazi war criminal were statements of opinion); Horsely v. Rivera [13], 292 F.3d 695, 702 (11th Cir. 2002) (talk show host’s statement describing anti-abortion activist as an “accomplice” in an abortion-doctor’s murder was statement of opinion because participants “were engaged in an emotional debate concerning emotionaly charged issues of significant public concern” and used “non-literal, figurative language in expressing their views”); Buckley v. Littell [14], 539 F.2d 882, 895 (2d Cir. 1976) (statement that plaintiff published materials from “openly fascist journals” was statement of opinion); Condit v. Clermont County Review, 675 N.E.2d 475, 478 (Ohio Ct. App. 1996) (statements in newspaper editorials that two members of anti-abortion organization were “fascists” were statements of opinion); Standing Comm. on Discipline v. Yagman [15], 55 F.3d 1430, 1440 (9th Cir. 1995) (statement that federal judge was “right-wing fanatic” was statement of opinion).

We’ll be monitoring developments in the case and providing updates in our database entry, Neuwirth v. Silverstein [16].

San Bayard is a lawyer and assistant director at the Berkman Center for Internet & Society at Harvard.