June 1, 2010
By Steven M. Ellis
Div. One in an unpublished opinion said that Richard Gibson’s action was not a strategic lawsuit against public participation because the posts describing his alleged character flaws and improper conduct were neither political speech nor speech on a matter of public interest.
Gibson, who has advertised his legal practice on Craigslist, filed suit against the unknown posters in 2008 after what he claimed were several years of alleged anonymous, derogatory postings on community discussion boards at Craigslist and on Google’s “Blogspot.”
He said the posts included his office’s mailing and e-mail addresses, his office telephone number and his State Bar number, and, among others, accused him of breaking numerous criminal laws, harassment and stalking, violating the California Rules of Professional Conduct, being mentally ill, threatening the posters with violence, expressing bigotry and using illegal drugs.
The posts also urged readers not to use Gibson as an attorney, threatened him with physical harm and encouraged readers to send him computer viruses, Gibson said. He contended the unknown poster or posters also made similar allegations in e-mails to apparently randomly-selected attorneys in Los Angeles County and in e-mails to Gibson about the postings.
Anonymous messages targeting Gibson on Craigslist have continued, with at least one having been posted as recently as Friday afternoon.
Gibson—who has no public record of discipline, according to the State Bar’s website—said the opinion confirmed that “harassing someone on the Internet is not a political issue, it’s a private thing.” He commented that “there’s a lot of anonymous stalking going on on the Internet,” and said that “if there’s any larger significance [to the decision]…it’s that…if you figure out who’s doing it, you can do something about it.”
Gibson ultimately amended his complaint to name Justin Swingle as a defendant after obtaining Swingle’s name through a subpoena. Asked why Swingle singled him out, Gibson said “it’s really bizarre…I’ve never met, never spoken, never done business with him.”
Swingle answered Gibson’s complaint with allegations that the attorney had deleted Swingle’s Craigslist posts by illegally “flagging” them for violations of the website’s guidelines or policies in an attempt to prevent Swingle from engaging in speech on political issues ranging from illegal immigration to religious bigotry. Posts are removed from Craigslist if enough users “flag” them, or if the website’s staff independently determines a post to be improper.
Swingle also brought causes of action alleging intentional infliction of emotional distress and violation of the constitutional right to free speech, and then moved to strike Gibson’s complaint, admitting that he posted some of the messages but arguing he was engaged in protected political speech.
Los Angeles Superior Court Judge Paul Gutman denied the motion because Swingle failed to file it within 60 days of Gibson’s initial complaint.
On appeal, Presiding Justice Robert M. Mallano agreed with Swingle that the motion was timely because it was filed within 60 days of an amended complaint naming Swingle’s trust as a second defendant. However, the justice denied relief because Gibson’s claims “are not based on statements made in connection with a public issue.”
Under California’s anti-SLAPP statute, which applies to suits aimed at preventing citizens from exercising their political rights or punishing those who do, a defendant seeking to strike the complaint must show that the challenged cause of action arises from protected activity, such as speech on a public issue. If the defendant meets this burden, the plaintiff must then show a probability of success in order to keep the case alive.
But Mallano said Swingle failed to meet the initial burden. Opining that the anti-SLAPP statute’s focus is the defendant’s activity that gives rise to the asserted liability, not the form of the plaintiff’s cause of action, and leaving for later the issue of whether Swingle’s comments were actually defamatory, he wrote: “Gibson’s claims are based on defendant’s alleged derogatory Internet posts, not on political statements.”
Justices Frances Rothschild and Victoria Gerrard Chaney joined Mallano in his opinion.
Gibson told the MetNews that in the course of his case he discovered that Swingle “does this with lots of people,” and speculated that it was “a power thing.”
He said trial on the defamation action was the next step, but commented:
“It’s weird; [Swingle] admits it, pretty much. His only defense is to say it’s true.”
Gibson maintained that such an assertion would be inaccurate.
Swingle’s counsel, Jeffrey Agnew of Ramona, could not be reached for comment.
The case is Gibson v. Swingle, B217082.
Copyright 2010 Metropolitan News Company